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THE QUEENSLAND 

CRIMINAL REPORTS 

BEING A / \^ 

REPRINT ' 

OF 

ALL CRIMINAL CASES 

REPORTED IN 

THE SUPREME COURT REPORTS, Vols. 1 to 5 (1860 to 1881), 

THE QUEENSLAND LAW JOURNAL and NOTES OF CASES, 
Vols. I. to XI. (1881 to 1901), 

THE QUEENSLAND STATE REPORTS and WEEKLY NOTES 

(1902 to 1907). 

WITH ANNOTATIONS 

SHOWING WHAT CASES HAVE BEEN OVERRULED, FOLLOWED, !Eto., 

AND WITH REFERENCES TO THE SECTIONS OF THE 

CRIMINAL CODE NOW APPLICABLE. 



THOMAS MACLEOD, ESQ. 

(Barrister- at-Law), 

Editor of " The Queensland Justice of the Peace. " and 

" Blair on Worker's Gompensation." 



BRISBANE : 

LAW BOOK COMPANY LIMITED. 

1913. 



P RE FACE. \\ '^^^ / 



^-4wTre;t,i> 



This volume of reprinted reports of Criminal Cases 
has been compiled in order to have in a handy form, both 
for Court work and for reference purposes, the cases decided 
on this branch of the law in Queensland prior to the publica- 
tion of The Queensland Justice of the Peace, to which it is 
a companion volume. Difficulty has been experienced, 
especially by new practitioners, in obtaining complete sets 
of the reports (particularly the earlier volumes), from which 
these cases have been reprinted, and in addition to such 
difficulty, the price of the reports is a serious consideration. 
Numerous requests have been made during recent years for 
such a volume, and it is hoped it will prove of service, not 
only to members of the Profession, but also to Magistrates, 
Clerks of Petty Sessions, and members of the Police Force, 
A Subject Index is included in order to facilitate quick 
reference to cases. The Editor desires to express his 
thanks to Mr. T. B. Hunter, Solicitor, who has personally 
attended to the reading of the proofs and the checking of 

references. 

T. M. 

Lutwyche Chambers, 

March, 1913. 



INDEX OF CASES. 





A 






PAQB 


Abbott, R. v. . . 








. . 354 


Ah Sam, R. v. . . 








186 


Aird V. Skelton 








476 


Alberg, R. v. 








337 


Archibald, R. v. 








44 


Arrowsmith, R. v. 








. . 491 


Attwood, R. V. 








26 


s 


Baird and Others, Williams v. 




. . 166 


Ball V. Humphreys, JSx parte Humphreys 




. . 467 


Barton, R. u. . . 






. . 141 


Beckman, R. v. 






. . 381 


Bennett, R. «. . . 






23, 377 


Berneoker v. White 






. . 209 


Bilbey v. Hartley and Others 






219 


Black V. Turner . . 






283 


Britcher v. Williams and Others 






249 


Bunney, K. v. . . 






. . 265 


Bunting and Walsh, R. v. 






400 


C 


Camm, R. v. 






. . 138 


Carlo, Pedro, In re 






. . 241 


CarroU v. Hasz, Ex parte Hasz 






467, 470 


Caruchet, In re 






359 


Castles and Griffiths, R. v. 






54 


Cawley, R. v. . . 






. . 314 


Chabal, Ex parte, R. v. Lewis 






. . 409 


Chambers and Another, R. 


V. 






327 



INDEX OF CASES. 









PAGE 


Clarke, Emmerson v. 






71 


Coath, R. v. 






63 


Collins, R. v. . . 






24 


Connell, B,. v. . . 






. 286 


Connolly v. Meagher, Ex parte Meagher 






. 573 


Cooney, Crudgington v. . . 






414 


Corbett, R. v. . . 






. 463 


Corvie and Lesnini, TA. v. 






122 


Court, In re 






60 


Craine, R. «. . . 






. 350 


Crown (Tim), B.. v. 






. 303 


Crudgington v. Cooney, Ex parte Cooney 






414 


Cunningham v. McFarlane and Another 






129 


Curran v. Dowzer and Others 






160 



Davies and MoMurdo, R. v. 








150 


Dixon, R. V. . . 








. 174 


Dodwell, n. V. .. 








. 105 


Dowling V. Fritz and Others 








. 134 


Dowzer and Others, Curran v. 








160 


Draper, R. v. . . 








. 492 


Duncan, R. v. . . 








. 239 


Dunshot, R. w. . . 








. 365 



e: 



Edwards, McNamara v. 
Edwards, R. v. . . 
Emmerson v. Clarke 



Ex parte Edwards 



585 

310 

71 



Ferrett, Ex parte, R. v. Wilson 








11 


Finlay, B,. v. . . 








. 328 


Fitzgerald, R. v. 








494 


Forrest, R. -y. . . 








600 


Franz, R. v. 








238 


Freeman, B,. v. . . 








. 300 


Fritz and Others, Dowling v. 








. 134 


Fuzil Deen, B. v. 








307 



INDEX OF CASES. 



PAGE 

Gallagher, Sheehan v. . . . . . . . . . . 426 


Gash, B,. V. 






131 


Geise v. Hennessey, Ex parte Hennessey- 






. 497 


Glen, R. V. 






. 361 


Goldsmith v. Roche 






52 


Goldsworfchy, R. v. 






. 334 


Gomez, R. v. . . 






. 119 


Griffin (No. 1), R. w. 






29 


Griffin (No. 2), R. t;. 






35 


Griffiths and Castles, B,. v. 






54 


Griffiths and Others, R. v. 






. 502 


Grimes, R. v. . . 






. 336 


H 


Hallam, Molloy v. 




. . 478 


Haly and Another, Rawlings v. . . 




. . 234 


Hamill, R. v. . . 




. . 495 


Hamilton, R. v. 




195, 362 


Hart, R. «. 




357, 370 


Hartley and Others, Bilbey v. 




219 


Hasz, Carroll v. 




467, 470 


Haughton, In re 






. 110 


Henderson v. Macdonald and Another 






. 216 


Hennessey, Geise v. 






497 


Hennessey, R. v. 






27 


Highfield, R. v. . . 






. 117 


Hill, n. V. 






. 370 


Hinckley, R. v. . . 






189 


Hobart and Murphy, R. «. 






. 342 


Hogan, K. V. . . 






. 207 


Hogan (Rody), B,. v. 






207 


Hook (Lum), R. v. 






212 


Hopkins and Eaton, R. v. 






. 162 


Horrocks, B,. v. . . 






. 237 


Hoskings, B,. v. . . 






83 


Houston, B. V. . . 






. 269 


Howells, Ex parte, R. v. Edwards . . 






. 310 


HuU, B.v. 






. 396 


Hull (No. 2), R. V. 






. 403 


Hume, B. V. 






. 395 



"VIU. 



INDEX OF CASES. 







PAGE 


Humphreys, Ball v. 


.. 467 


Hustin (Louis), R. v. 


. . 124 


<T 




Jack, R. w. 


256 


Jacobs, R. ■«. . . 


. . 538 


James, R. v. . . 


. . 329 


Jenkins, McNamara v., Ex parte Jenkins 


581 


Jimmy, R. v. . . 


93 


Jooumsen, R. ■y. 


396 


Johnson, B,. v. . . 


.. 215 


Johnstone; R. v. 


591 


Jong Song V. Joy Hoy and Others . . 


348 


Joy Hoy and Others, Jong Song v. 


348 


Judge, R. I). 


168 


Justices of Dalby, Ex parte, O'Keefe, R. v. . . 


. . 420 


If 




Kearley, R. v. . . 




. . 601 


KeUy, n. V. 




78 


Kennedy and Royston, R. v. 




123 


Kenniff, B,. v. . . 




422, 432, 434 


KennifE (No. 2), R. v. 




. . 432 


Kiefer, Millis v. 




. . 376 


King, R. v. 




95 


King, R. v., Ex parte King 




1 


Knack, R. v. . . 




. . 203 


Koghie, B. V. . . 




189 


Kovalky, R. •y. . . 




295 


Kuruwaru, R. v. 




372 


Xa 




Lang and Murphy, R. v. . . 




352 


Lannon, R. v. . . 




. . 486 


Leane, R. «. 




. . 492 


Lesnini and Corvie, R. v. . . 




122 


Levy, B. V. 




56 


Lewis, R. i;. 




25 


Lewis, Ex parte Chabal, R. v. 




. . 409 


Long V. Rawlins 




87 


Long, In re 




91 



INDEX OF CASES. 



IX 



Longland, R. v. . . 

Louis Hustin (called Watier), R. v. 

Lum Hook, R. «. 

Lynch, R. v. 



PAOB 

325 
124 
212 
537 



BS 

Macdonald, R. v. 

Macdonald and Another, Henderson v. 

Maguire and Schloss, R. v. 

Malone, R. v. 

Mangin, R. v. 

Many Many and Others, R. v. 

Meagher, Connolly v., Ex parte Meagher 

MiUis V. Kiefer . . 

MiUs, Swanwick v. 

Minnis, In re 

Molloy V. HaUam 

Moody, U. V. 

Moran, R. v. 

Murphy and Hobart, R. v. 

Murphy and Lang, R. v. 

Murphy and Others, R. v. 

Murray, R. v. 

McDermott, R. v. 

McFarlane and Another, Cunningham v. 

McGee, U. v. 

McMurdo and Da vies, R. v. 

McNamara v. Edwards, Ex parte Edwards 

McNamara v. Jenkins, Ex parte Jenkins 



MT 



Nugent, R. v. 



386, 505 
216 
337 
461 
261 
296 
573 
376 
191 
134 
478 
344 
335 
342 
352 
549 
370 
433 
129 
279 
150 
585 
581 



24 



O'Byme, Ex parte, Smith v. O'Byrne 
0' Byrne, Smith v. 

O'Keefe, Ex parte, R. v. Dalby Justices 
Oliver, Ex parte, R. v. Murray 



252 
252 
420 
370 



Parker, R. v. 
Patterson, R. v. 



140 
580 



INDEX OF CASES. 



Pearce, R. v. 


, , 


, , 






. 532 


Pearson, R. v. . . 






39 


Peim, R. V. 






62 


Pieremont, R. r. 






. 175 


Pierson, The King v., Ex parte Small 






. 549 


Portley, R. v. . . 






81 


Priday, R. v. . . 






. 384 


Priday, Ex parte, R. v. Priday 






. 384 


Pugh, R. V. 






13 


IC 


Rawlins, Long v. 








87 


Rawlings v. Haly and Another 








. 234 


Richert, R. «. . . 








. 335 


Robinson, B.. v. . . 










. 285 


Roche, R. v.. 










. 204 


Roche, Goldsmith v. 










52 


Rody Hogan, R. v. 










. 207 


Ross, R. v. 










. 298 


Royle, R. v. 










. 272 


Roys, R. i;. 










351 


Royston and Kennedy, R 


V. 








123 


Ryan, B,. v. 


" 








. 553 


B 


Sam (Ah), R. v. < . 






186 


Schloss and Maguire, R. v. 






337 


SeUheim and Others, Viokers v. . . 






. 136 


Shaw, R. D. 






. 337 


Sheehan v. Gallagher, Ex parte Sheehan 






. 426 


Sidney, Ex parte, R. v. White 






8 


Skelton, Aird v. 






. 476 


Small, Ex parte. The King v. Pierson 






. 549 


Smith V. O'Byrne i. 






. 252 


Spence, R. v. . . 






. 335 


Street, R. ■;;. . . . . . . ~ 






. 196 


Strutt, Ex parte, R. v. Macdonald . . 






. 386 


Swanwick v. Mills 






. 191 


T 


The King v. Pierson, Ex parte Small . . . . . . 549 


Tidbury, B,. v. .. 




. 




, 


. 349 



INDEX OF CASES. 



XI 



Tim Crown, R. v. 
Tracey, R. v. 
Turner, Black v. 



FAOB 

303 
299 
283 



Vickers v. Sellheim and Others 

Vos, R. «. 

Vos and Others, R. u. 



136 
334 

288 



vsr 



Walsh and Bunting, R. v. 

Warden, R. v. . . 

Warton, B,. v. . . 

WeUs, R. V. 

White, Bemecker v. 

White, R. v.. Ex parte Sidney 

Whitehouse, R. v. 

WilMe, B,. V. 

Williams v. Baird and Others 

Williams and Others, Britcher v. 

WiUie, B.. V. 

Wilson, R. «. 

Wilson, R. v., Ex parte Ferrett 

Wisher and Another, R. v. 



308, 366, 



400 
353 
540 
112 
209 
8 

392, 396 
41 
166 
249 
336 
336 
11 
323 



Queensland Justice of tlje Peace. 



CRIMINAL REPORTS. 



1860-1907. 



R. V. KING, Ex parte KING. 

[1 S.C.R. 1.— Note— See ss. 12, 13, 14. 557 (8) of Criminal Code, 41 and 55 Vic, 
c. 69 ; Extradition Act, 1903 (No. 12 of 1903]. 

Habeas corpus — Remand of prisoner where the Court has no jurisdic- 
tion to try o'ffence — Corpus delicti — Arrest of prisoner on 
suspicion of a felony committed beyond the territorial limits of 
the colony — Comity of nations — Delivery up of fugitives from 
justice — Extradition — 2 Vic, No. 11 — 6 and 7 Vic, c. 34, 
ss. 2, 3, 4, 5, 6, 9—16 and 17 Vic, c 118. 

A constable has no power to arrest a person on suspicion of having committed 
a felony beyond the territorial limits of the colony, unless such felony be supposed 
to have been committed upon the high seas and within the limits of the 
Admiralty jurisdiction of the Supreme Court of Queensland. 

If an arrest appears to have been improperly effected, the Court cannot 
remand a prisoner, unless there be some ofience committed by him within the 
jurisdiction of the Court. 

Independent of special compact, no state is bound to deliver up fugitives 
from justice upon the demand of a foreign state, and there is no rule of the law 
of nations which requires the Supreme Court of Queensland to assist the police 
of a foreign dominion in bringing offenders to justice. 

Application by William King for his discharge on the return 
to a writ of habeas corpus. 



I860. 

23nd February, 

25th March. 

Lutwyche. 



a QUEENSLAND JUSTICE OF THE PEACE. 

ExparuKi^a. Blalceney appeared for the prisoner. 

Pring A.O. to oppose the application. 

The facts and arguments appear sufficiently in the judgment. 
C.A.V. 

25th March, 1860. 
ulwyc e J. LtTTWYCHE J. : A rule nisi having been obtained in Chambers 

for a habeas corpus directing the keeper of the gaol at Brisbane to 
bring up the body of WiUiam King, in order that he might be 
discharged from custody, on the first day of the present Term, he 
was accordingly brought into Court, and the return made by the 
gaoler was that King had been committed to his custody by ^drtue 
of a warrant of remand signed by two Justices of the Peace in 
and for the Colony of Queensland, and setting forth that King 
had been charged before them with felony, and that it had 
appeared to them to be necessary to remand him ; and that the 
said warrant commanded the gaoler to receive King into his 
custody, and there keep him until the 25th day of February, 
when he was thereby commanded to have King at the Police 
Office, Brisbane, at 10 o'clock in the forenoon, before the said 
justices, or before such other justices or justice of the peace 
for the said Colony ^s might then be there, to answer further 
the said charge. The depositions taken before the justices 
were also returned, and from them it appeared that King was 
taken into custody by the Chief Constable of the Brisbane Police, 
on the 17th February, 1860, on suspicion of having caused the 
death of one Nicholas Deer, at Maryland, in the Colony of New 
South Wales, by inflicting a wound on his body with shears, 
or some such instrument, on or about the 25th November, 1859, 
It appeared also that he had been committed by the Warwick 
Bench of Magistrates to take his trial for the offence at Brisbane, 
and that at the Brisbane February Assize he had been discharged 
by the order of the Judge, upon the statement of the Attorney- 
General that he had no charge to make against the prisoner, 
on account of want of jurisdiction. 

Mr. Blakeney was heard on King's behalf, and the Attorney- 
General argued the case on the part of the Crown, citing the 
dictum of Heath J. in Mure v. Kay (4 Taunt. 43) ; Burn's Justice, 
Tit., Habeas Corpus ; Ex parte Krans (1 B. & C. 258, 2 D. & E. 



CRIMINAL REPORTS, 1860-1907. > 

411), Rex V. Marks (3 East. 157), Ex 'parte Scott (9 B. & C. 446, ^K- "■ ^Ma, 

^ ^ £xpartfi Kino. 
4 M. & R. 361). On account of the great importance of the 

question, the Court took time to consider and prepare a written " ^^"^ 

judgment, which I shall now deliver. 

I am of opinion, in the first place, that no constable has power to 
arrest any person on suspicion of his having committed a felony 
beyond the territorial limits of the colony, unless such felony be 
supposed to have been committed upon the high seas, and within 
the limits of the Admiralty jurisdiction of the Supreme Court. 
The cases which establish, in general terms, that a constable may 
without warrant arrest a person upon a reasonable suspicion 
of felony (See Davis v. Russell, 5 Bing. 354, 2 M. & P. 590 ; 
Beckwith v. Philby, 6 B. & C. 635, 9 D. & R. 487) will not be 
found to support, if carefully examined, the universal application 
of the rule. The " great original and inherent authority with 
regard to arrests " (4 Steph. Comm. 359), which a constable 
undoubtedly possesses, is limited by the boundaries of the state 
or dominion in which he holds his office. If the law were other- 
wise, the power of arrest on suspicion might become, in this 
part of the globe, an engine of the most grievous oppression. It 
is clear that if such a power exists, in reference to felonies com- 
mitted out of the colony, it might be exercised wherever a felony 
has been committed, or is supposed to have been committed, 
in any part of the British Empire, to say nothing of the dominions 
of foreign powers. Is a man, then, to be arrested and committed 
to gaol in this colony because the constable has received informa- 
tion which leads him to suspect that his prisoner was concerned 
in some felony at Delhi or British Columbia ? And, if com- 
mitted to gaol, how long is he to be kept there ? This Court 
would not have any jurisdiction to try him for the offence. Is he to 
abide in gaol untU the authorities of some distant portion of the 
Empire have been communicated with, and have signified their 
intention to remove him at the first convenient opportunity ? 
Common sense, which is very often found in the closest alliance 
with the law of England, revolts at the suggestion of imprisoning 
a man for twelve or eighteen months before trial ; yet, if the 
imprisonment be designed to insure his being brought to trial, as 
long, or even a longer interval would occasionally elapse. 

It was contended, however, on the part of the Crown, that, 



4 QUEENSLAND JUSTICE OF THE PEACE. 

E. « Kino, assuming the caption to have been improperly efeected, yet if a, 
Mx parte Kino. ^ ^ \ n t- ■^^ ^ 

corpus delicti appear on the depositions, the Court wui remana 

Lutwyche J. ^^^ prisoner. But what is meant by a corpus delicti 1 My 
opinion is clear that it can only apply to some offence committed 
within the jurisdiction of the Court. From the depositions it 
appears that the felony with which King stood charged before 
the justices was committed in Maryland, then and now within 
the colony of New South Wales, on the 25th November last. Upon 
the proclamation of the Queen's letters patent on the lOtn 
December following, the district of Moreton Bay was separated 
from New South Wales, and became a distinct dominion under 
the name of Queensland. An appeal no longer lies from its 
Supreme Court to the Supreme Court at Sydney, and the con- 
current jurisdiction within twenty-five miles of each side of the 
border line with which the Judges of each Court were invested, 
has, by force of the Act of Separation, been abolished. The offence 
charged is shown, therefore, to have been committed within a 
foreign dominion, and as, according to the common law of Eng- 
land, " criminal offences are considered as altogether local, and are 
justiciable only by the Courts of that country where the offence is 
committed " (See "Wheaton's Elements of International Law," 6th 
Ed., 1857, p. 175), King can only be tried by the Court of New 
South Wales ; and no such corpus delicti appears on the face of 
the depositions as would justify this Court in remanding the 
prisoner to custody. 

The Court was pressed by the Attorney-General to remand the 
prisoner on another ground, viz. : — The obligation imposed by 
the law of nations to assist in bringing a criminal to justice, 
' and he relied on a dictum of Mr. Justice Heath, who, in the case 

of Mure v. Kay (supra), is reported to have said : — " It has- 
been generally understood that wheresoever a crime has been 
committed, the criminal is punishable according to the lex loci 
of the country against the law of which the crime was committed ; 
and by the comity of nations, the country in which the criminal 
has been found, has aided the police of the country against 
which the crime was committed in bringing the criminal to punish- 
ment. In Lord Loughborough's time, the crew of a Dutch 
ship mastered the vessel and ran away with her, and brought 
her into Deal ; and it was a question whether we could seize 



CRIMINAL REPORTS, 1860-1907. £ 

them, and send them to Holland ; and it was held we might. „K- "■ -ij", 

Ex parte King. 
And the same has always been the law of all civilized countries." — 

The reputation of Taunton, as a reporter, does not stand very ^ 

high, and it is, therefore, possible that he may have misunder- 
stood what fell from the learned Judge, and have stated too 
broadly the general proposition. Of the grounds of the decision 
in the particular case referred to, we are not informed ; but it 
may be observed that there may be Acts within the competency 
of a sovereign state which could not be constitutionally under- 
taken by a dependent dominion like a colony. At all events, 
whatever may be the value of the precedent in a case of piracy, 
it does not establish the position that, " by the comity of nations, 
the country in which the criminal has been found, has aided the 
police of the country against which the crime was committed 
in bringing the criminal to punishment." On the contrary, 
both a priori reasoning and the evidence of indisputable facts 
point to the conclusion that such an obligation has not yet been 
imposed by that code which we call the law of nations. A much 
higher authority than Mr. Justice Heath — I refer to that dis- 
tinguished publicist, Mr. Wheaton — states the question thus : He 
says (pp. 176-7), " The public jurists are divided upon the question 
how far a sovereign state is obliged to deliver up persons, whether 
its own subjects or foreigners, charged with or convicted of crimes 
committed in another country, upon the demand of a foreign state, 
or of its officers of justice. Some of these writers maintain the 
doctrine that, according to the laws and usage of nations, every 
sovereign state is obliged to refuse an asylum to individuals 
accused of crimes affecting the general peace and security of 
society, and whose extradition is demanded by the Government 
of that country within whose jurisdiction the crime has been 
committed. Such is the opinion of Grotius, Heineccius, Bur- 
lamaqui, Vattell, Rutherforth, Schmelzing, and Kent. Accord- 
ing to Puffendorf, Voet, Martens, Kliiber, Leyser, Kluitt, 
Saalfield, Schmaltz, Mittenmeyer, and Heffter, on the other 
hand, the extradition of fugitives from justice is a matter of 
imperfect obligation only ; and though it may be habitually 
practised by certain states, as the result of mutual comity and 
convenience, it requires to be confirmed and regulated by special 
compact, in order to give it the force of an international law ; and 



QUEENSLAND JUSTICE OF THE PEACE. 

B. V. King, the last mentioned learned writer considers the very fact of the 
Ex parte Kisa. . , ,. a.- i.i.- it 

existence of so many special treaties respecting this matter as 

Lutwyohe J. conclusive evidence that there is no such general usage among 
nations, constituting a perfect obligation, and having the force of 
law properly so called. Even under systems of confederated 
states, such as the Germanic Confederation, and the North 
American Union, this obligation is limited to the cases and con- 
ditions mentioned in the federal compacts. The negative doctrine^ 
that, independent of special compact, no state is bound to deliver 
up fugitives from justice upon the demand of a foreign state, 
was maintained at an early period by the United States Govern- 
ment, and is confirmed by a considerable preponderance of 
judicial authority in the American Courts of Justice, both state 
and federal." 

The " negative doctrine " thus maintained in the United States 
has been tacitly recognised of late years by England, France, and 
Prussia, who have entered into treaties with the United States for 
the extradition of criminals charged with certain specified offences. 
A treaty has also been made between England and France for the 
same object, and the Acts of the Imperial Parliament, 6 and 7 
Vic, c. 75 and c. 76, were passed to carry into effect the con- 
ventions with France and the United States for that purpose. 
By entering into treaties on the subject, each of these powers 
has, I conceive, admitted that a special compact was necessary 
to obtain the object desired ; by limiting the scope of the treaty 
to a certain class of offenders, each country practically asserted 
its right to afford an asylum to all other fugitives from justice. 
Political offences affect as much as any other, sometimes much 
more, the general peace and security of society ; yet, it is well 
known that England has never felt herself obliged, by the comity 
of nations, to assist the police of the country against which the 
political crime was committed in bringing the criminal to punish- 
ment, even though the crime amounted to high treason. 

Enough, then, has been said to show that a constable cannot 
arrest any person on suspicion of a felony committed beyond the 
limits of the dominions to which he himself belongs ; that the 
Court cannot remand the prisoner when it has no jurisdiction 
to try him for the felony alleged to have been committed ; and 
that there is no rule of the law of nations which requires the 



CRIMINAL REPORTS, 1860-1907. ' 

Court to assist the police of a foreign dominion in bringing _^- ^- ;^"''' 

„ J . Ex parte King. 
OEfenders to justice. There are, however, two enactments, one 

a Colonial Act of Council, the other an Imperial Statute, which '^^^ 

must be noticed, inasmuch as the former (2 Vic, No. 11, Call. 501) 
bears out the view taken by the Court, and shows specific legis- 
lation on the subject to have been considered necessary ; while 
the latter (6 and 7 Vic, c. 34, amended by 16 and 17 Vic, o. 
118) points out the course which ought to have been adopted 
in the present case, and which must be pursued in future.* 

The object of the Colonial Act, 2 Vic, No. 11, is well indicated 
by its title, " an Act to facilitate the apprehension of offenders 
escaping from the Island of Van Dieman's Land, or from South 
Australia, to the colony of New South Wales." It is unnecessary 
to recapitulate its provisions, as the Act itself has been virtually 
repealed by the Imperial Act subsequently passed, 6 and 7 Vic, 
c. 34. That Act, which was not mentioned during the argument, 
now extends to all felonies (see 16 and 17 Vic, c 118), and the 
sections material to the present matter are ss. 2, 3, 4, 5, 6, and 
9. These sections are set out at length in Oke's Magisterial 
Synopsis, 6th Ed., 1858, pp. 640-645, and it will be seen that, 
while they effectually provide for the apprehension of offenders 
flying from justice, they also furnish ample safe-guards for the 
liberty of the subject. No person who has committed a felony, 
not triable by this Court, can be arrested in the colony of Queens- 
land, except a warrant against him has first been issued by some 
person or persons having lawful authority to do so. This warrant 
must be brought to the Judge of the Supreme Court, who is to 
require proof on oath or affidavit that the seal or -signature in the 
warrant is the seal or signature of the person whose seal or 
signature the same purports to be. On such proof being given, the 
Judge is to endorse his name on such warrant, which warrant, so 
endorsed, is to be a sufficient authority to the person or persons 
bringing such warrant, and also to all persons to whom such 
warrant was originally directed, and also to all peace officers of 
the place where the warrant shall be so endorsed, to execute the 
same within the jurisdiction of the Judge, by apprehending the 
person against whom such warrant was directed, and to convey 
him before a magistrate, or other persons having authority to 



* See now 44 and 45 Vic, c. 69 (P. & W. 3122). 



R. V. EiKG, 
Ex parte King. 

Lutwyche J. 



QUEENSLAND JUSTICE OF THE PEACE. 

examine and commit offenders for trial in this colony. The 
magistrate is then authorised, upon such evidence of criminality 
as would justify his committal if the offence had been com- 
mitted in Queensland, to commit the offender to prison until he 
can be sent back to that part of her Majesty's dominions in which 
he is charged with having committed such ofiEence ; and immedi- 
ately upon his committal, information thereof, in writing, under 
the hand of the committing magistrate, accompanied by a copy 
of the warrant, is to be transmitted to the Governor of the colony. 
The Governor may then, by warrant, under his hand and seal, 
order the person so committed to be delivered into the custody 
of some person or persons, to be named in his warrant, for the 
purpose of being conveyed into that part of her Majesty's 
dominions in which he is charged with having committed the 
offence, there to be dealt with in due course of law ; and if the 
person so committed to gaol be not conveyed out of the colony 
accordingly, within two calendar months after his committal, 
he. may, on application to the Judge, be discharged. 

The result of the present application is that the Court holds 
the prisoner to be entitled to his discharge. 



1860. 

23rd February. 
1st March. 

Lutwyche J, 



R. V. WHITE, Ex parte SIDNEY. 

[1 S.C.R. 9.— Note.— 13 Vic, No. 29 and 17 Vic, No 6, are repealed. See now s. 
109 of Licensing Act of 1885 (49 Vic, No. 18). 22 Vic, No. 7, mentioned by 
Lutwyche J., has been repealed, see now s. 3 of Criminal Law Amendment 
Act, 1892 (56 Vic, No. 3)J. 

Criminal proceedings — Justices' refusal to hear evidence— The 
Licensed Publicans' Act of 1849 (13 Vic., No. 29), ss. 2, 69— 
— -17 Vic, No. 6, s. 3 — Sale of liquor in quantity not being 
less than two gallons. 

Whenever a statute authorises the imprisonment of an offender against its 
provisions, whether it be as the primary punishment for the offence, or as 
punishment in the last resort, the proceedings against him must be regarded as a 
criminal proceeding. 

Application on behalf of John Sidney for a writ of prohibition 
against J. C. White and C. Coxen, Justices, and James Shelton, 



CEIMINAL REPOETS, 1860-1907. 9 

prosecutor, to restrain further proceedings upon a conviction R- "• White, 

1 , r. TT. -., ~ o J. ^^ parte Sidney. 
under 13 Vic, No, 29, s. 2, of the said John Sidney. 

Blakeney, for applicant, to move rule absolute. 

Pring A.Q. to show cause. 

The facts and arguments of counsel appear fully in the 
judgment of the learned Judge. 

C.A.V. 

1st March, 1860. 

LuTWYCHE J. : The applicant had been convicted under the Act Lutwyche J. 
13 Vic, No. 29, s. 2, for selling two bottles of rum, he not then 
having a publican's general license ; and a rule nisi for a prohibi- 
tion was subsequently granted upon the following grounds :— 
1st. That the justices improperly refused to hear the evidence 
■of the wife of the applicant, which was tendered on his behalf. 
2nd. That neither in the information, nor the conviction, was 
it alleged that the quantity disposed of was less than two gallons. 

Cause was shown against the rule on the second day of Term 
(Thursday, February 23), and it was agreed on both sides that the 
judgment of the Court, whenever delivered, should be taken 
as of the Term. 

The first point turns upon the meaning of the words in the 
3rd section of the Act 22 Vic, No. 7, which provides that nothing 
in the Act shall render any wife competent or compellable to give 
evidence for or against her husband in any criminal proceedings. 
It was contended by Mr. Blakeney, on the part of the applicant, 
that the proceedings against him under the Act of CouncU above 
mentioned was not a criminal proceeding, because the primary 
punishment 'contemplated by the Act was a pecuniary penalty. 
The cases, however, which he cited Attorney -General v. Badloff, 
10 Ex. 84 ; 23 L.J., Ex. 240 ; 10 Jur. 555 ; Easton's Case, 12 
Ad. & Ell. 645 ; A.G. v. Siddon, 1 C. & J. 220 ; Backham v. 
Bluck, 9 Q.B. 691), fail to establish this position. In the 
Attorney-General v. Badloff, the Court of Exchequer was divided 
n opinion whether an information for penalties under the 
Smuggling Acts, at the suit of the Attorney-General, was a 
criminal proceeding punishable on summary conviction. No 
inference is deducible, therefore, either way, from that case. In 
Easton's case, the decision of the Court was, that a person sen- 



10 



QUEENSLAND JUSTICE OF THE PEACE. 



K. I'. White, 
Ex parte Sidney. 

Lutwyehe J. 



tenced by two Justices to imprisonment with hard labour, under 
the Smuggling Act, is in execution in a criminal matter. That 
case, consequently, does not assist the applicant. The observa- 
tions of Mr. Baron Bayley, in the Attorney-General v. Siddon, 
merely go to show that an information for penalties at the suit 
of the Attorney-General is a civil and not a criminal proceeding ; 
and Rackham v. Bliick only decides that a proceeding in the 
Consistorial Court, to recover penalties against a clergyman for 
non-residence, is a civU and not a criminal suit. In none of 
these cases was the pecuniary penalty the primary punishment 
of the offence ; it was the sole punishment. And I am of opinion 
— an opinion borne out even by the authorities cited in support 
of the application — that whenever a statute authorises the 
mprisonment of an offender against its provisions, whether it be 
the primary punishment of the offence, or punishment in the last 
resort, the proceeding against him must be regarded as a criminal 
proceeding. In Easton's case (12 Add. Ell. 648), Lord Denman 
says : " This must be called a criminal matter ; the party is 
sentenced to imprisonment with hard labour, which puts the 
point beyond a doubt." And in the Attorney-General v. Radloff 
(23 L.J. (Ex.) 248), Mr. Baron Piatt, whose judgment was cited 
in support of the application, puts the distinction between civU 
and criminal proceedings as turning upon the liability to im- 
prisonment. The 69th section of the Act under which the applicant 
was convicted, authorises, in the event of non-payment of the 
penalty imposed, a distress upon the offender's goods, and, in 
case of the distress being insufficient, imprisonment of his person 
for a limited period. And the Act, 17 Vic, No. 6, s. 3, empowers 
the Justices, in all cases of conviction under the Act, 13 Vic, 
No. 29, s. 2, to add imprisonment, in the first instance, to the 
pecuniary penalty. There can be no doubt, therefore, that this 
was a criminal proceeding, and the Justices properly refused 
to hear the evidence of the applicant's wife. 

The second point is of less importance, and may be disposed of 
shortly. The objection to the proceedings is that neither the 
information nor the conviction, based upon the second section 
of the Act, alleges a matter which is made the subject of excep- 
tion in the third section, and declares that the quantity dis- 
posed of was less than two gallons. It may be worthy of con- 



CRIMINAL REPOETS, 1860-1907. 11 

sideration whether such an allegation would be in any case R- ^- Whitb, 

Ex parte Sidney 
necessary, and whether it would be not incumbent on the party 

accused to bring himself within the exception, and to show LutwyoheJ. 
that he, being a person within a proclaimed place, sold a quantity 
of spirits, not being less than two gallons. But I do not decide 
that point now. My judgment is founded upon the fact that the 
proceedings before the convicting magistrates were had by 
summons, and that in such summons the general nature of the 
complaint was succinctly stated, pursuant to the proviso in 
the 69th section of the Act 13 Vic, No. 29. A formal informa- 
tion in writing had been exhibited before the magistrate who 
issued the summons, but it was not used afterwards ; and, conse- 
quently, the defendant could not have been placed in a worse 
position than if the complaint had originally been made orally. 
Credit may be given to the Court for knowing enough of the 
common affairs of life to take cognizance that two bottles of 
rum fall short of the quantity of two gallons. The summons 
gave the magistrates jurisdiction, and in so plain a case every 
intendment ought to be made in favour of its exercise. 
The rule for a prohibition is accordingly discharged. 



R. V. WILSON, Ex parte FERRET. 

[1 S.C.R. 12.— Note See. 8 of 17 Vie., No, 3, Is repealed, see now s. 445 ol 

Criminal Code.] 

Prohibition — Illegally branding — 17 Vic, No. 3, ss. 3, 10 — Costs i860. 

against justices. 30th April. 

A conviction under s. 6 of 17 Vic, No. 3, of the " illegal possession and branding Lutwyche J. 
of a filly " is bad. 

Where magistrates retain counsel to support a conviction after the Attorney- 
General has advised that the conviction cannot be sustained, and a writ of 
prohibition is granted, they are liable for costs. 

Motion on behaK of John Ferret to make absolute a rule nisi for 
a writ of prohibition against John Kerr Wilson, Henry William 
Coxen, and William Giles Gordon, Justices, and William Miles, to 
restrain further proceedings on an order by the said justices 
against the said applicant, and to recover from the said justices 
the costs of the appUcation. 



]2 



QUEENSLAND JUSTICE OF THE PEACE. 



R. o. Wilson, 
Ex parte Fbbbbt. 



Latwyohe J. 



The facts and arguments appear suificiently in the judgment. 

Blakeney, for the defendant, moved rule absolute. 

Lilley appeared for the justices, to show cause. 
C.A.V. 

LtTTWYCHE J. : A rule was obtained on the 6th of February last, 
on the part of John Ferret, calling on the abovenamed justices, 
and William Miles, to show cause why they should not be pro- 
hibited from proceeding on a conviction pronounced against 
Ferret on the 21st January last, and why a fine of £10 and costs 
should not be refunded. 

The information and conviction (under the Act of Council 
17 Vic, No. 3, s. 6), described Ferret's offence as the " illegal 
possession and branding of a filly," and consequently the infor- 
mation and the conviction are bad on the face of them, as pointed 
out in the fourth ground upon which the rule was obtained. 
The offence described in the section is a " taking, using, or 
working " of cattle without the owner's consent ; but instead 
of following the words of the Act, as s. 10 prescribes, the infor- 
mation and conviction charge an illegal possession and branding, 
which might indeed be evidence of a taking, or using, without the 
owner's consent, but which is not declared by the Act to be an 
offence per se. The point is so clear that I should not have 
thought it necessary to deliver a written judgment, if Mr. 
Blakeney had not applied for the costs of the day against the 
magistrates, who had retained Mr. Lilley to appear in support 
of the conviction, after having been officially informed by the 
Attorney-General that the conviction could not be sustained. The 
applicant was thereby put to unnecessary expense in employing 
counsel to support the rule ; and if this had not been the first time 
that the question had arisen, I should have made the rule for a 
prohibition absolute, with the costs of the day to be paid by the 
magistrates. But it must be distinctly understood that, in future, 
the magistrates will be visited with costs, if the conviction be 
quashed, whenever they choose to employ counsel •to support 
their view of the law, after having been informed by the highest 
legal authority at the bar that the matter is not arguable. Their 
official position enables them to obtain gratuitously the advice 
and assistance of the Attorney-General, and if he tel s them 



CRIMINAL REPORTS, 1860-1907. 13 

they have mistaken the law, as all men may do sometimes, they K. v. Wilson, 

, . Ex parte FssRET. 
ought to acquiesce, and not oppress a person who has been 

illegally convicted by putting him to expense which he may not Lutwyohe J. 

be so well able to afford as themselves. In the present case, 

however, the rule for a prohibition must be made absolute without 

costs. 



R. V. PUGH. 



[1 S.C.R. 63.— Note.— See now ss. 44 and 52 ol Criminal Code. 11 Vic, No. 13, 
s. 10, referred to in tlie judgment, is repealed, see now s. 376 ol Ciiminal Code. 
Also 25 Vic, No. 17, and 13 Vic, No. 8, mentioned in the judgment, are since 
repealed.] 

Seditious libel — Information by Attorney -General, ex officio, by 1862. 

resolution of the Legislative Council — Charge to jury in trial aSrd^Augmt. 

for seditious libel — Law and custom of Parliament — 32 Oeo. Luucyche J. 
III., c. 60, s. 1. 

The Attorney-General, ex officio, by direction of the Legislative pouncil of 
Queensland, filed an information against the printer and publisher "of a newspaper, 
for an alleged seditious libel on that body. 

LuTWYCHE, J., charged the jury that a seditious libel could not be published 
of and concerning the Legislative Council. 

Ikfoemation presented by the Attorney-General, ex officio, at 
the request of the Legislative Council, against Theophilus Parsons 
Pugh, for having printed and pubHshed in the Courier, on 30th 
July, 1861, a seditious Ubel of and concerning the Legislative 
Council of Queensland. 

Pring A.G. and Bramston prosecuted. 

Gore Jones and Carey for the defendant. 

A plea that the Court had no jurisdiction, as being illegally 
constituted, was overruled. The learned Judge stated that he 
held his commission under the Imperial Statute, 18 and 19 Vic, 
c. 54, and referred to the order of Council of 5th June, 1861. 

A plea of not guilty was then entered. 

LxTTWYCHE J., at the conclusion of the trial, delivered the ^ , , ^ 

Lutwyohe J, 
following charge to the jury :— 



14 



QUEENSLAND JUSTICE OF THE PEACE. 



PUGH 



Lutwyche J. 



Gentlemen of the jury.— The defendant in this case, Theophilus 
Parsons Pugh, is charged by the Attorney-General, acting ex officio, 
with the publication of a false, scandalous, malicious, and seditious 
libel in the Courier of 30th July last, of and concerning the Legis- 
lative Coiincil of this colony. The defendant has pleaded " not 
guilty " to the information which has been filed, and you are to 
say by your verdict whether you think the defendant has pub- 
lished a seditious libel or not. There are reasons, gentlemen, for 
desiring that this case should have been tried before any other 
Judge than myself. The article in the Courier, which is alleged 
to reflect in a seditious manner on the Legislative Council, con- 
tains a warm defence of the conduct of Mr. Justice Lutwyche, as 
well as a warm attack upon the conduct of the Legislative Council, 
in reference to the present Judge of the Supreme Court. I am 
placed, therefore, in a very invidious position, and the duty 
M'hich I have to perform this day is far from being agreeable to 
me. But, gentlemen, whether the performance of a duty be agree- 
able or not, a duty must be discharged, and I shall endeavour to 
fulfil mine in such a manner as to leave as little occasion as 
possible for unfavourable comment. I shall deal with this case 
precisely in the same way, and direct you on points of law in the 
same terms, as if the Judge whose conduct has been censured by 
the Legislative Council were my colleague on the Bench, or say, 
for instance, the gentleman who is senior in point of standing at 
the Bar, Mr. Blakeney. I shall pursue in this case the same 
course which I have invariably followed ever since I have had the 
honour of a seat on the Bench of the Supreme Court, in civil 
actions for libel and slander. I shall not express any opinion 
of my own upon the alleged calumnious character of the pubUca- 
tion, nor shall I say what I think of the conduct of the defendant 
in relation to the circumstances which have been disclosed by the 
evidence. But I shall be bound to tell you whether this pubhca- 
tion, assuming it to contain a false, scandalous, and maUcious 
libel upon the Legislative Council, amounts to a seditious libel, for 
that, as the case now stands, is purely a question of law ; and, as 
there is no appeal from my decision in criminal matters, I thought 
it right, in order that I may neither be misunderstood nor mis- 
quoted, to reduce my charge into writing. 

As you will perceive, I have anticipated all the points which 
have been raised at the bar, and have considered some points 
which have not been urged by counsel, but which, nevertheless, 
appear to me necessary to be discussed, in order to arrive at a 



CRIMINAL REPORTS, 1860-1907. 15 

proper understanding of the great constitutional question involved ^- *'• P""^- 
in this trial. Lutwyche J. 

(The learned Judge here read over the information and the 
notes which he had taken of the evidence, and then proceeded 
as follows) : — 

I am constrained, in the outset, to express my disapprobation of 
the manner in which this information has been drawn. In the 
copy which lies before me, there is much matter which does not 
reflect on the Legislative Council in any way. I suppose, to save 
trouble, it was deemed expedient to insert the article in the 
Courier entire, but such a course is hardly fair towards a defendant, 
as it must tend to distract his attention from the charge which 
he has to meet, and it swells the costs of the defence, which, 
whether he be convicted or acquitted, the defendant will have to 
pay. I hope I shall not have occasion, in any future prosecution 
for a libel, to repeat these remarks. 

Gentlemen, the offence known to the law as libel consists in 
the malicious publication of defamatory matter, expressed either 
in writing or in printing, or by signs or pictures, and which 
publication tends either to corrupt the mind of the public, and 
to destroy the love of decency, morality, and good order ; or, 
in the case of an individual, to expose him to hatred, ridicule, or 
contempt. A private individual may bring an action to recover 
damages for the injury done to his character by such a publication ; 
but the ground of the criminal proceeding is the public mischief 
which libels are calculated to create in alienating the minds of 
the people from religion and good morals, and rendering them 
hostile to the Government and magistracy of the country, and, 
where particular individuals are attacked, in causing such irrita- 
tion in their minds as may induce them to commit a breach of 
the public peace. (1 Russell on Crimes, p. 211, Ed. 1826.) It 
appears to have been considered at one time that the remedies 
by action and indictment for libels were co-extensive, and might 
be regarded as upon the same footing, but this could formerly 
only have been understood of cases where the libel, from its 
nature and subject, inflicted a private injury, and not of those 
eases in which the public only could be said to be affected by the 
libel. Now, however, by the Act 11 Vic, No. 13, s. 10, it is 
provided that on the trial of any indictment or information for 
a defamatory libel, the truth of the matters charged may be 
inquired into, if it be alleged by the defendant that it was for the 
public benefit that the matters so charged should be pubUshed, 



16 



QUEENSLAND JUSTICE OF THE PEA.CE. 



E. V. PoGH. and if he set forth the particular fact or facts by reason whereof 
Lutv^Se J. it was for the pubUc benefit that the matters so charged should 
be pubhshed. But this section does not apply to seditious 
libels (R. V. Duffy, 2 Cox C.C. 45, Rose on Evidence, p. 655, Ed., 
1857) ; and, consequently, in pleading to the present information, 
the defendant was restricted to the plea of " not guilty," under 
which plea evidence is receivable to show either that he never 
published the alleged libel, or that the matter contained in- it is 
not seditious, and was justified by the occasion on which it was 
published. The intention may be collected from the libel, 
unless the mode of pubUcation, or other circumstances, explain 
it, and the pubhsher must be presumed to intend what the publi- 
cation is Ukely to produce, so that if it is likely to excite sedition, 
he must be presumed to have intended it to have that effect. 
(Pex V. Burdett, 4 B. & A. 95). 

Gentlemen, there can be no doubt that an information may be 
supported for the pubUcation of a false, scandalous, and malicious 
libel on the Legislative Council or the Legislative Assembly of this 
colony. The two Houses of Legislature have very important 
functions to discharge, and are on that account entitled to con- 
sideration and respect. Not only do they assist in the making of 
the laws by which we are governed, but they form the grand 
inquest of the colony ; and, by a recent colonial enactment (25 
Vic, No. 7), extensive powers, which did not belong to them at 
common law, have been conferred on them in order that their 
deUberations may be carried on in perfect tranquility and with 
greater efficacy than before. The utmost freedom of debate 
is allowed, and any member of either house may say within its 
walls whatever he pleases of any person not being a member, 
without being responsible, either civilly or criminally, for the 
consequences. No doubt this privilege may be abused, but no 
human institution is perfect. Unfortunately, experience teaches 
us that men whom neither nature nor education have fitted for 
the position, occasionally find their way into Colonial Legislatures, 
and even into the Imperial Parliament. Men of this stamp, 
sometimes from mere thoughtlessness, sometimes from the 
working of an ill regulated mind, indulge themselves by scurrilous 
attacks upon public and private character, and knowing they 
have, to quote the language of Mr. Justice Coleridge {Stockdale v. 
Hansard, 9 Ad. and Ell. 242) a legal monopoly in slander, are apt 
to make the most of the commodity. For all this there is n" 
redress, save in the expression of public opinion, and public opinion 



CRIMINAL REPORTS, 1860-1907. 17 

generally finds a channel for expression in the public press. The ^' ''•^<*°- 
privileged slanderer is not protected from public criticism, pro- Lutwyohe J. 
vided the criticism be fair and honest. And this rule applies 
not merely to an individual member of either house, but to each 
house and both houses collectively. 

I have said that the Legislature is a grand inquest of the colony. 
If, however, it should proceed without inquiry — if, while acting 
in a qiiasi judicial manner, it should acscept surmises and insinua- 
tions as proofs, and deal with suspicions as conclusive evidence 
— a public writer would be justified in commenting upon such 
conduct with freedom, and even with severity. " I think it 
quite right," says Lord Chief Baron Pollock, in Gathercole v. 
Miall (15 M. & W. 332), " that all matters that are entirely of a 
public nature, conduct of Ministers, conduct of Judges, the 
proceedings of all persons who are responsible to the pubhc at 
large, are deemed to be pubhc property, and that aU bona fide 
and honest remarks upon such persons and their conduct may 
be made with perfect freedom and without being questioned too 
nicely for either truth or justice." In the same case, Mr. Baron 
Alderson observes (p. 338), " It seems there is a distinction, 
although I must say I reaUy can hardly tell what the Hmits of it 
are, between the comments on a man's public conduct and upon 
his private conduct. I can understand that you have a right 
to comment on the public acts of a Minister, upon the public 
acts of a general, upon the public judgment of a judge, upon the 
public skill of an actor — I can understand that ; but I do not 
know where the limit can be drawn distinctly between where the 
comment is to cease, as being applied solely to a man's conduct, 
and where it is to begin, as applicable to his private character ; 
because, although it is quite competent for a person to speak 
of a judgment of a judge as being an extremely erroneous and 
foolish one (and, no doubt, comments of that sort have a great 
tendency to make persons careful of what they say) ; although 
it is perfectly competent for persons to say of an actor that he is a 
remarkably bad actor, and ought not to be permitted to perform 
such and such parts so ill ; yet you ought not to be allowed to 
say of an actor that he has disgraced himself in private life, 
nor to say of a judge or Minister that he has committed felony, 
or anything of that description which is no way connected with 
•iis public conduct or pubhc judgment." And, therefore, gentle- 
men, if any pubhc writer, or speaker at a pubhc meeting, should 
comment, as he has a perfect right to do, on the proceedings 



18 



QUEENSLAND JUSTICE OP THE PEACE. 



E. V. Pdqh. 
Lutwyche J. 



of either house of the legislature, or on the conduct of members of 
either house, he must confine his remarks to their behaviour as 
public bodies and pubho men. He would not be justified, for 
instance, in saying of one member that he was a murderer (see 
Harwood v. Sir J. Astley, 1 B. & P. N.R. 47), or of another, that he 
was an adulterer, a gambler, and a drunkard ; or of a third, that 
he was a griping landlord and a tyrannical master to his servants. 
By making remarks Uke these he would overstep the boundaries 
of legitimate criticism, although he might think he had good 
reason for beUeving that what he was saying was true. But 
the law wiU protect any man in making comment, however 
strongly worded, on the public conduct of pubhc bodies and public 
men, if those comments be made in good faith and in honest 
spirit. 

Gentlemen, I have made those observations because it seems to 
me that they are much needed at the present juncture. I expected 
that the Attorney-General would have filed an information against 
the defendant for a scandalous libel reflecting on the Legislative 
Council, and, as I have already intimated, there is no doubt that 
the publication of such a Ubel, if proved to the satisfaction of a 
jury, would subject the offender to severe penalties. It is quite 
true that in the mother country prosecutions of this kind have 
fallen into disuse. The last case which I have been able to find is 
in R. V. Reeves (Peake's Addl. Cases, 84, Ed., 1796), about 65 
years ago, in which the prosecution was instituted by the Attorney- 
General, in consequence of a resolution of the House of Commons, 
declaring a pamphlet published by the defendant to be a libel. 
The Imperial Parhament has now no need of prosecution for libels 
to support its character and dignity, although they were occa- 
sionally instituted in more arbitrary times. Still, the right of 
prosecution exists, and if the Legislative Council of this colony 
deems it expedient to resort to such proceedings, it will be the duty 
of this Court to give them full effect. They must, however, be 
commenced in some other way than by an information ex officio. 
The usual objects of an information ex officio, are properly such 
enormous misdemeanours as peculiarly tend to disturb or endanger 
the Queen's Government, or to molest or affront her in the regular 
discharge of her royal functions, such as a seditious or blasphemous 
libel or words, seditious riots not amounting to high treason, libels 
upon the Queen's ministers, the judges or other high officers, 
reflecting upon their conduct in the execution of their official 
duties, obstructing such officers in the execution of their official 



CRIMINAL REPORTS, 1860-1907. 19 

duties, and the like (Arch. PI. and Evid. 95, Ed. 1856). The ^- ''_Pcgh. 
Attorney-General appears to have been alive to this difficulty, Lutwyche J. 
and, therefore, while complying with the request of the Legis- 
lative Council to prosecute the publisher of the Courier for a 
libel, he has filed an information, not for the publication of a 
scandalous but of a seditious libel. By so doing, however, he has 
fallen into a graver error than he would have committed if he 
had filed an information ex officio against the defendant for the 
publication of a scandalous libel on the Legislative Council. 
In the latter case I should have been prepared to reserve (under 
the Act 13 Vic, No. 8, s. 1) the point about the form of the 
information, and the case could then have gone to the jury on its 
merits. And, gentlemen, if this course had been taken, I might 
very fitly have adopted, as a portion of my charge to you, a 
passage from the speech delivered by Mr. Erskine (afterwards 
Lord Chancellor) in the case of The King v. Stockdale (22 Howell's 
State Trials, 238), to which the Attorney-General has to-day 
called the attention of the Court. The defendant in that case 
was prosecuted for a Ubel upon the House of Commons by pub- 
lishing a review of the charges made by the House of Commons 
against Warren Hastings, formerly Governor of India, and 
whereby he was impeached of high crimes and misdemeanours. 
The review was in fact a defence of the conduct of Warren Hastings, 
and, in answering the charge of Ubel against Stockdale, his 
counsel, Mr. Erskine, used these memorable words : — " If, after 
the performance of this duty (i.e. the reading of the review), you 
can return here, and with clear consciences pronounce upon your 
oaths that the impression made upon you by these pages is that 
the author wrote them with the wicked, seditious, and corrupt 
intentions charged by the information, you have then my full 
permission to find the defendant guilty. But if, on the other 
hand, the general tenor of the composition shall impress you 
with respect for the author, and point him out to you as a man, 
mistaken, perhaps, himself, but not seeking to deceive others ; 
if every line of the work shall present to you an intelligent mind 
glowing with a Christian compassion towards a fellow man whom 
he believed to be innocent, and with a patriot's zeal for the liberty 
of his country, which he considered wounded through the sides 
of an oppressed fellow citizen ; if this shall be the impression 
on your consciences and understanding when you are called upon 
to deliver your verdict, then hear from me that you not only 
work private injustice, but break up the press of England, and 



20 QUEENSLAND JUSTICE OF THE PEACE. 

R. V. Pnoa. surrender her rights and liberties for ever, if you convict the 

Lutwyohe J. defendant." 

These words, gentlemen, with a few verbal alterations which will 
easily suggest themselves to your mind, would have appropriately 
formed a portion of my charge to you if the defendant in this 
case had been indicted for the publication of a false, scandalous, 
and malicious libel. But the information charges the pubHcation 
of a seditious Ubel, and I am bound to tell you that, in point of 
law, no seditious Ubel can be published of and concerning the 
Legislative Council of this colony. What, gentlemen, is sedition ? 
It is defined to be a factious commotion of the people, or a. 
tumultuous assembly of men rising in opposition to law or the 
administration of justice, and in disturbance of pubUc peace 
(Webster's Diet.). The precedents for seditious libels and words 
always charge an intent to stir up and excite discontents and 
seditions among Her Majesty's subjects, or to excite them to 
insurrections, riots, and breaches of the peace ; and if this be the 
language of the precedents, it shows what the law is, for pleading is 
the language of the law. Such an intent must be alleged and 
proved before any man can be convicted of the pubUcation of a 
seditious libel. Does the present information charge any such 
intent ? It does not. It charges, indeed, an intent to bring 
the Legislative Council into hatred and contempt with " the 
subjects of the colony " — a clumsy and inaccurate expression — 
but such an intent, even if carried into execution, would not 
amount to sedition at common law. It is said by a learned 
writer on the law of libel (Starkey on Libel, 535), that the same 
policy which prohibits seditious comments on the King's conduct 
and government, extends, on the same grounds, to similar reflec- 
tions on the proceedings of the two Houses of ParUament. With 
great respect for the authority of that distinguished lawyer, 
I yet entertain strong doubts whether even the two Houses 
of the Imperial ParUament had power, at common law, to direct 
a prosecution for a seditious Ubel on either of them. The only 
two cases cited by the Attorney-General to show that the House 
of Commons had an inherent power to direct a prosecution 
for seditious libels were R. v. Almon (20 Howell's State Trials, 
803), and R. v. Stockdale already referred to. In the former 
case the defendant's offence was the publication of " Junius's 
Letter to the King," tied the information contained two counts, 
the first charging a seditious pubUcation against the King, his 
ministers, and the House of Commons, and the second charging 



CEIMINAL REPORTS, 1860-1907. 21 

a seditious publication against the House of Commons. The ^^ "• ^^°^- 

defendant was convicted, and, as it was at that time considered Lut^^e J. 

by all lawyers that an indictment might be sustained if one 

offence known to the law were duly set forth in it, I can easily 

understand why the counsel for the defendant did not take 

any steps to arrest the judgment on the ground that the second 

count of the information was bad. It is now settled, however, 

by a comparatively recent decision of the House of Lords 

{O'Connell v. The Queen, 11 CI. & F., 155), that if there be one bad 

count in an indictment, and a general verdict of guilty be taken 

on all the counts, the judgment must be arrested. In Stockdale's 

case the defendant was acquitted, and no opportunity, therefore, 

was afforded for testing the validity of the information. 

These two cases are the only precedents to show what the 
practice of the House of Commons has been ; but, as Lord Denman 
observes in Stockdale v. Hansard (9 Ad. and E. 155)—" The 
practice of a ruling power in the state is but a feeble proof of its 
legality." And the doubts which I have expressed are greatly 
fortified by the subsequent passing of a statute (60 Geo. III. 
and 1 Geo. IV., c. 8) containing provisions which would have been 
unnecessary if the House of Commons had, at common law, the 
power which was claimed for them. That Act, which was passed 
in times of great political commotion — about the period of what 
are termed the Manchester Massacres and the Cato Street Con- 
spiracy — enacted that a hbel tending to bring into hatred or 
contempt either House of Parliament was a seditious libel. The 
enactment, however, has remained a dead letter on the statute 
book ; but it is quite clear that its operation was intended to 
be confined to the two Houses of the Imperial Parliament, and 
iad no reference to any existing colonial legislature, to say 
nothing of a legislature which was not created till forty years 
afterwards. And, whether the Imperial Parliament possessed at 
common law the power of prosecuting for a seditious libel or not, 
it is now well settled that the law and custom of Parliament, 
under which such a power might have been claimed and exercised, 
applies exclusively to the House of Lords and House of Commons 
in England. (Fenton v. Hampton, 11 Moo. P.C. Cas. 347.) The 
law and custom of Parliament is founded on precedents and 
immemorial usage, under cover of which a ruling power in the 
state " has committed many acts which posterity has unequivo- 
cally condemned." By the creation of a local legislature, such 
powers only are conferred upon it as are reaonably necessary for 



22 QUEENSLAND JUSTICE OF THE PEACE. 

B. V. PnoH. the proper exercise of its functions and duties (Kielley v. Carson, 4 
Lutwyche J. Moo. P.O. Gas. 63). We owe allegiance to the Queen and obedi- 
ence to the lawful commands of the Queen's Government ; but 
the Legislature of Queensland forms no part of the Government, 
Theoretically, as well as practically, the Legislature and the 
Executive are separate bodies with distinct functions, and any 
attempt to amalgamate them would only result in confusion and 
disorder. 

The objection to the sufficiency of the information appears on 
the record, and the defendant may take advantage of it, either 
by a motion in arrest of judgment, or by a special case under the 
Act 13 Vic, No. 8. As he has pleaded to the information, it wifl 
now be for you, gentlemen, to say whether the defendant haa 
published a seditious libel, or whether you think that the article 
which was published in the Courier on 30th of July was justified by 
the occasion of its pubHcation. I have already said that in point 
of law a seditious libel cannot be published of and concerning the 
Legislative Council, though a scandalous libel may ; and you are 
to say whether you will adopt my opinion of a seditious libel or 
not ; and, unless you are satisfied that I am wrong, you will 
take the law from me. In giving you, gentlemen, this direction, 
I follow the precise terms of a direction given by a very learned 
judge in a similar case (Rex v. Burdett, 4 B. & A. 95), and which 
direction was considered by the Court of King's Bench to be a. 
correct mode of leaving the question to the jury under 32 Geo. III., 
c. 60 (Mr. Fox's Libel Act). You will now, gentlemen, be pleased 
to consider your verdict. 

Verdict :— " Not guilty." 

Solicitors for defendant : Lilley ds Garrick. 



CRIMINAL REPORTS, 1860-1907. 23 

[In Banco.] 

R. V. BENNETT. 

[1 S.C.R. 109,— Kote.— See now s. 427 of Criminal Code. 29 Vic, No. 6, s. 94, 
mentioned in footnote, is repealed.] 

7 cfc 8 Geo. IV., c. 29, s. 5Z— False pretences—'' Chattel "—Credit. 1863. 

21st August. 
Bread, meat, drink, and refreshments are " chattels " within the meaning of 

7 & 8 Geo. IV., c. 29, s. 53.* C<'c'^'« C? ■'■ 



Ceown Case reserved by Lutwyche J. 

Bennett was charged at the Ipswich Assizes with having 
obtained " bread, meat, drink, and refreshments " from one 
Jackson Curry by a false pretence. He was found guilty and 
sentenced, but Lutwyche J. reserved for the opinion of the Court 
in Banco the question whether " bread, meat, drink, and refresh- 
ments," as charged in the information, were chattels within the 
meaning of 7 & 8 Geo. IV., c. 29, s. 53.* 

Blakeney, for the prisoner, cited R. v. Gardner (25 L.J., M.C., 
100) ; R. V. Kenrick (5 Q.B. 49) ; R. v. Crossley (2 Moo. & R. 17). 

The Court answered the question in the af&rmative, and affirmed 
the conviction. 

Pring A.G. begged the leave of the Court to say that many 
cases came before him, as grand jury of the colony, similar to 
this ; and he believed in this the real question was that credit 
had been obtained from Jackson Curry. 

The Court stated they were of opinion that, from the case as 
stated, even if credit had been obtained, the chattels had also 
been obtained, and that question would not affect the present 
case. 

* 7 & 8 Geo. IV., c. 29, a. 53. And whereas a failure of justice frequently 
arises from the subtle distinction between larceny and fraud for remedy thereof 
be it enacted that if any person shall by any false pretence obtain from any 
other person any chattel money or valuable security with intent to cheat or 
defraud any person of the same every such offender shall be guilty of a misde- 
meanour and being convicted thereof shall be liable at the discretion of the 
court to be transported beyond the seas for the term of seven years or to suffer 
such other punishment by fine or imprisonment or by both as the Court shall 
award. Provided always that if upon the trial of any person indicted for such 
misdemeanour it shall be proved that he obtained the property in question in any 
such manner as to amount in law to larceny he shall not by reason thereof be 
entitled to be acquitted of such misdemeanour and no such indictment shall be 
removable by certiorari and no person tried for such misdemeanour shall be 
liable to be afterwards prosecuted for larceny upon the same facts. — Pring's 
Stat., p. 344. (But see now 29 Vic, No. 6, a. 94.) 



Lutu-yche J. 



24 



QUEENSLAND JUSTICE OF THE PEACE. 



R. V. COLLINS. 
[1 S.C.R. 112.— Note.— See ss. 571 and 596 ol Criminal Code.] 
1864. Information — Objection to — Time for objection — Commission of 

SUtjuly. Crown Prosecutor. 

Lutwyche J. A prisoner, arrainged on a charge o£ murder, pleaded not guilty His counsel 

then took objection to the prisoner's trial on the information filed against him, 
on the ground that it was signed by a Crown Prosecutor who was not acting under 
a valid commission. 

Held, that the objection was taken too late, as the prisoner had already pleaded 
over. 

Tbial of Michael Collins at the Toowoomba Assizes on a charge 
of murder. 

Blakeney, for the prisoner. 

Prisoner, who was indicted for murder, on his arraignment, 
pleaded not guilty. 

Blakeney took a preliminary objection to the prisoner's being 
tried on the information to which he had pleaded, as it had 
been filed by the Crown Prosecutor, Mr. Gore-Jones, claiming 
to act under a valid commission from the Governor, whereas the 
commission was not dated when issued, and the date was only 
put in by the Attorney-General during the assizes. 

Lutwyche J. was of opinion that the objection had been taken 
too late, as the prisoner had already pleaded over. 



1865. 
19th April. 

Cockle C.J. 
Lutwyche J. 



[In Banco.] 

R. r. NUGENT. 

[1 S.C.R. 135 ; 7 Q.L.J. N.C. 102.— Note.— See now s. 391 of Criminal Code.] 

Larceny — Absolute and special property — Felonious intent. 

N. was charged with stealing and receiving two kegs of brandy, seized by 
K., a sergeant of the poUce, in the execution of his duty. The jury found as a 
fact that N. intended to deprive K. of his whole property in the goods, but had 
taken them for the benefit of the former owner. 

Hdd, that on those facts a conviction of larceny could not be sustained. 

R. V. Knight (2 East P. C. 510), foUowed. 

Crown Case reserved by Cockle C.J. on the trial of Nugent 
at Rockhampton, on an information containing two counts, 
charging him with steaUng and receiving two kegs of brandy 



CRIMINAL REPOETS, 1860-1907. 



25 



which a sergeant in the gold escort of poUce had seized in the B" "• Wugent. 
execution of his duty, and which, subject to such seizure and its 
results, were the property of Smith. 

In answer to questions put by the learned Judge, the jury found 
the prisoner intended to deprive Kelly of his whole property in 
the goods, and that he took them for the benefit of Smith, being 
aware of a lawful seizure by Kelly, and that the latter had a 
right to the goods as against Smith. 

The prisoner was convicted on both counts and sentenced. 

The question reserved for the Court was whether, on the facts 
so found, a larceny had been committed. 

PrifUj A.G., for the Crown, cited R. v. Privett (1 Den. 193), 
B. V. Jones (lb. 188). 

Cockle C.J. : In E. v. Knight (2 East. P.C. 510), where un- Cockle C J. 
customed goods were seized by the prisoners with intent to re- 
take them on behalf of their former owner, the presumption of 
the felonious intention was rebutted on the finding of the jury. 
In R. V. Privett there was an absolute ownership. In R. v. 
Knight the property was special. The two cases are distinguish- 
able from the one now before the Court, in which there was no 
absolute property. We follow R. v. Knight, and avoid the 
judgment. 

Conviction quashed. 



[In Banco.] 

R. V. LEWIS. 

[1 S.C.R. 138. — Note. — See now s. 619 ol Criminal Code.] 

Crown case reserved — Crown prosecutor — Right of reply — District 
Court. 

The Crown Prosecutor in the Supreme Court has a right to reply, even though 
the prisoner caE no evidence. 

Qucere whether the same rights exist under The District Courts Act. 

Cbown Case reserved by Ltjtwyche J. 

The prisoner was tried at the Criminal Sittings of the Supreme 
Court at Rockhampton, on the 30th September, 1865, before his 
Honor Mr. Justice Lutwyche, on a charge of horse steahng. No 
evidence was called for the defence. Bramston, Crown Prosecutor, 
claimed a right to reply on the part of the Crown. The learned 



1865. 
7th December. 

Cockle G.J. 
Lutwyche J. 



26 QUEENSLAND JUSTICE OP THE PEACE. 

R. .;^Lewis. Judge allowed the reply, but reserved, for the consideration of the 
Full Court, the point whether he was right in allowing such 
reply. The prisoner was convicted, and sentenced to one year's 
imprisonment with hard labour. 

Lilley A.G., in support of the right, referred to 7 C. & P., 676, 
where it was stated that, at a meeting of the Judges, a discussion 
took place as to certain points likely to occur at the assizes, in 
consequence of the recent Act allowing prisoners indicted for 
felony to make full defence by counsel. The course of practice 
as to the right of reply by the Crown which it was thought most 
advisable to adopt, was as follows : — In cases of pubUc prosecu- 
tion for felony, instituted by the Crown, the law officers of the 
Crown, and those who represent them, are, in strictness, entitled 
to the reply, although no evidence is produced on the part of 
the prisoner. 

The Court were of opinion that Mr. Bramston, being duly 
authorised to represent the Attorney-General, had the same 
right as the Attorney-General ; but that it must be understood 
that they gave no opinion as to whether the same rights extended 
to Crown Prosecutors under The District Courts Act. 



1866. 
5th Septeviber. 

Cockle G.J. 
Lutwyche J. 



[In Banco.] 

REGINA V. ATTWOOD. 

[1 S.C.R. 146.— Note See ss. 567 and 568 ol Criminal Code.] 

Information — Counts for felony and misdemeanour — Amendment 
refused — Plea. 

An information contained a count for felony, with a count for a misdemeanour. 
Leave to amend was refused. The accused pleaded, and no evidence was offered 
on the felony, and the prisoner was convicted of the misdemeanour. 

Held, that the conviction as to the misdemeanour must be sustained. 

B. V. Ferguson (27 L.J. M.C. 61) followed. 

Cbown Case reserved by the Judge of the MetropoHtan District 
Court, at Brisbane. 

The prisoner was tried, on the 14th August, on an information 
charging him with obtaining goods under false pretences, by utter- 
ing a forged cheque ; and also with feloniously stealing the said 
goods. At the trial, objection was taken to the indictment, and 
leave to amend, by striking out the count for the felony, was 



CRIMINAL REPORTS, 1860-1907. 



27 



refused. The prisoner pleaded, and a verdict of guilty was found 
on the first count, and sentence passed, the learned Judge reserv- 
ing, however, the question whether the conviction could, under 
the circumstances, be sustained. 

The prisoner in person. 

Cockle C.J. delivered the judgment of the Court as follows : — 
The occasions for amendments should be few, and should only 
arise under circumstances which could not have been f-oreseen 
by the draftsman if he had used reasonable foresight. It seems 
that the learned Judge refused to exercise those powers of amend- 
ment which, if they have the effect of leading to looseness of 
criminal pleadings, and are made the means of casting on the 
Judge the duty of the clerk of indictments, will prove of question- 
able pubhc utility, and will probably lead to evils as great, at 
least, as those they were intended to obviate. The information, 
combining as it did, a count for felony with a count for mis- 
demeanour, was improperly framed ; but we are not called upon 
to discuss the mode of rectifying the irregularity : we have only 
to consider the information as tried, and, in so doing, we presume 
that the prosecutor elected, or was put to his election, and that 
the prisoner was not embarassed in his defence. He made, as 
it seems, no application to quash the information, but pleaded 
to it ; and no evidence was offered on the count of felony. Under 
these circumstances we think the conviction must be sustained, 
and we are supported in this view by the analogous case (the 
converse of the present) of E. v. Ferguson (24 L.J.M.C. 61, Dears 
C.C. 427), and we affirm the conviction accordingly. 



BEaiNA V. 

AiTwooi). 



[In Banco.] 

REGINA V. HENNESSY. 

[1 S.C.R. 147 Note. — See s. 619 of Criminal Code. Case referred to in R. v. 

Walsh and Bunting (1902, S.R.Q. 6, at 8.] 

Crown Prosecutor — District Court — Right of reply where prisoner 
calls no evidence. 

No counsel, excepting the Attorney-General, on behalf of the Crown, or a 
counsel representing the Attorney-General and so acting, can reply, as of right, 
on the defence of a prisoner who adduces no evidence. 

Crown Case reserved by Sheppard D.C.J. 



1866. 
5th September. 

Cockle C.J. 
Lutwyche J. 



28 



QUEENSLAND JUSTICE OF THE PEACE. 



Begina cj. 
Heknesst. 



Cockle C.J. 



The prisoners were tried in the District Court at Brisbane, on 
13th June, 1866, on an information preferred by the Crown 
Prosecutor for the Metropolitan District, on a charge of horse 
stealing. No witnesses were called or examined for the prisoners, 
but on the conclusion of the case for the Crown, their advocate 
addressed the jury. At the close of his address, the Crown 
Prosecutor claimed a reply, which was objected to by the prisoners' 
advocate, no witnesses having been examined for the defence. 
The right having been insisted upon, the learned Judge allowed 
it ; but, on the appHcation of the prisoners' advocate, reserved 
the question for the consideration of the Supreme Court. The 
prisoners were convicted, and each sentenced to two years' 
imprisonment with hard labour. 

Qore Jones, for the Crown. 

Murphy, for the prisoners. 

Cockle C.J. : No counsel, excepting the Attorney-General, on 
behalf of the Crown, or a counsel representing the Attorney- 
General and so acting, can reply as of right, on the defence of a 
prisoner who adduces no evidence. This is a rule of law regulating 
practice, and not a mere matter of practice depending on the 
arbitrary discretion of judges. Whether the rule be inflexible is a 
point we need not enter upon, for the case suggests no special 
circumstance occasioning a departure from the general rule. 
The case does not state, and we cannot presume that the District 
Court Crown Prosecutor represented or ever assumed to represent, 
the Attorney-General. It would, perhaps, have been better if the 
commission under which the Crown Prosecutor had acted had 
been set out, but we do not think it necessary to send the case 
back to be re-stated ; for having been furnished by direction 
of the Attorney-General with copies of the commission, certified 
by our Registrar's clerk, we cannot see that its contents would 
lead to any substantial modification of the case. It may he 
presumed, then, upon the case as stated, that the right of the 
District Prosecutor to reply on the defence of prisoners on whose 
behalf no witnesses were examined, arose as a question of law on 
their trial. It may be further presumed that this right, which 
was insisted upon, was held to inhere in him simply as Crown 
Prosecutor, and in virtue of his office only. On these presumptions, 
which arise upon the case as stated, we think that the decision 
was wrong ; and, being of opinion, that a question of law which 
arose on the trial was wrongly decided, we avoid the conviction, 
and order all necessary and proper entries to be made accordingly. 



CRIMINAL REPOETS, 1860-1907. 



29 



LuTWYCHE J. : The practice of the Court is the law of the 
Court, and very great injustice might be occasioned by a departure 
on the part of the judge from long established usage. For 
instance, he might refuse the prisoner permission to cross-examine 
the witnesses for the Crown, or deny him the privilege conferred 
upon him by statute of being heard in his defence by counsel. 
These weU-known legal rights would be taken away from him, 
yet no record of it could be preserved, and unless we had the 
power of determining such questions of law, the prisoner could 
have no remedy. 



Regina v. 
Hennesst. 

Lutwyohe J. 



R. V. GRIFFIN (No. 1). 
[1 S.C.R. 176.] 

Criminal law — Murder — Evidence — Other felonies — A dmissihility 
of motive — Res gestae. 

On the trial of a prisoner for murder, evidence is admissible of other felonies 
committed by him where they prove a motive for the commission of the crime 
or form part of the res gestae. 

Ceowk case reserved by Lutwyche J., at the Rockhampton 
Assizes, held on March 16th, 1868. 

The prisoner, Thomas John Griffin, was indicted for the wilful 
murder of John Power and Patrick Cahill, at the Mackenzie 
River, on the 6th November, 1867. At the trial, the Attorney- 
General, who prosecuted on behalf of the Crown, in opening the 
case, stated that the prisoner, who had been Police Magistrate 
and Gold Commissioner at Clermont, had received in that capacity 
from certain Chinamen various sums of money, amounting to 
£252, to be forwarded to Rockhampton ; that he arrived in 
Rockhampton on the 19th of October, 1867, and was immediately 
applied to by the Chinamen, and by others on their behalf, for 
the money, but did not pay them then ; that the deceased troopers 
were, on the 29th October, members of the Clermont gold escort ; 
that on Tuesday, 29th October, the prisoner sent Power, one of 
the deceased, from the camp, about four miles from Rockhampton, 
to the bank for certain money to be conveyed to Clermont, and 
that Power received from the bank four parcels, each containing 
1,000 £1 notes ; that Power returned to the camp the same 
evening without any money or parcels ; that prisoner obtained 
the money from Power when he got out of town, and that the 



1868. 

12th May. 

Cockle C.J. 
Lutwyche J. 



80 QUEENSLAND JUSTICE OF THE PEACE. 

B. V. GKirFiN money remained in his possession till Friday, the 1st of November ; 
*^!li'' that on Wednesday, the 30th October, he met the Chinamen 

before referred to at the Club in Rookhampton, and repaid them 
the money he had received from them at Clermont in £1 notes 
which had been among those delivered to Power on the previous 
day by the bank ; that, on the 1st of November, the prisoner, at 
the request of Power and Cahill, with whom he was about to 
start on the road to Clermont, sealed up with his own seal in 
a canvas bag the parcels of notes then in charge of the deceased ; 
that the prisoner, having robbed the parcels, and having sealed 
the bag, was apprehensive that on the arrival of the escort at 
Clermont the robbery would be discovered and that he would be 
accused ; and that to save himself he accompanied Power and 
Cahill on the road as far as the Mackenzie River, and there 
murdered them. Evidence was given at great length, tending 
to prove that the prisoner, before leaving Rookhampton, had taken 
some of the notes from the parcels. The whole of that evidence 
was objected to by the prisoner's counsel, on the ground, among 
others, that evidence of one felony was not admissible against a 
prisoner charged with another distinct felony. The evidence was, 
however, admitted ; but Lutwyche J., before whom the a,ction 
was tried, reserved the point of the admissibility of such evidence 
for the opinion of the Full Court. 

The prisoner was convicted and sentenced to death. 

McDevitt, Hely, and Grifjfith, for the prisoner. With regard to 
the objections raised against the admissibility of the evidence, the 
Court has to decide whether the evidence tending to prove the 
abstraction of the notes was admissible, inasmuch as it was evi- 
dence of a distinct felony from that with which the prisoner was 
charged in the indictment on which he was tried. In considering 
whether that evidence was properly received or not, it is neces- 
sary to refer to the general rules of law as to the admission of 
testimony to understand how far evidence can be received of 
points not in issue before the Court. It has been laid down 
that the general rule upon the subject, in criminal as well as 
civil cases, is, that nothing should be given in evidence which 
does not directly tend to prove or disprove the matter at issue 
(Archbold's Criminal Practice, page 200). In criminal pro- 
ceedings evidence must be confined to the point in issue. Where a 
prisoner is charged with an offence, it is of the utmost importance 
that the facts laid before the jury should consist exclusively of the 
facts charged in the indictment. It is a general rule that the facts 



CRIMINAL REPORTS, 1860-1907. 81 



proved must be strictly relevant to the particular charge. It is 
not allowable to show upon the trial on a particular indictment 
that the prisoner has a disposition to commit the same kind of 
offence as that for which he stands indicted (3 Russell on Crimes, 
Book v., Cap. II., p. 279, s. 2). One of the chief objects of an 
indictment being to afford distinct information to the prisoner 
of the specific charge about to be brought against him, the ad- 
mission of any evidence unconnected with that charge must 
clearly be open to the serious objection of taking the prisoner 
by surprise. No man can be called upon, or be bound at the 
peril of life, liberty, fortune, or reputation, to answer at once, when 
unprepared, for every action of his Ufe (Taylor on Evidence, 
Vol. I., p. 303). The rule to which allusion has been made is 
qualified by numerous exceptions (to which reference will briefly 
be made) which the proper dispensation of justice requires ; but 
the evidence which has been admitted does not come within any 
of the exceptions. 1. The first exception is the inseparability 
of the transaction. When the several felonies are so mixed up 
as not to be separated without great inconvenience to the prosecu- 
tor, evidence of aU will be admitted (3 Russell on Crimes, 285 ; 
Rex V. Hinley, 2 M. & R. 524). Upon that first exception evidence 
of the nature of that which has been allowed at this trial cannot 
be admitted, unless the grounds for its admission are so strong, 
so patent, and so urgent, as to override the proposition so clearly 
laid down by the authorities quoted. 2. The next exception is 
when the felonies are so connected as to form one entire trans- 
action. Where several felonies are connected together and form 
part of one entire transaction, evidence may be given on the 
hearing of a charge of one of them to show the character of the 
others (3 Russell, 281 ; Bex v. Ellis, 6 B. & C, 145 ; R. v. Birdseye, 
4 C. & P. 386 ; Rex v. Wylie, 1 New Rep. S.C. 94 ; Taylor on 
Evidence, p. 334). Evidence of the robbery which took place 
several days, if not a week, before the crime with which the 
prisoner was charged, if admitted, at all, should have been ad- 
mitted on the ground that it formed part of one entire transaction. 
In most cases in which such evidence has been admitted there 
were felonies of the same character. 3. The third exception, to 
ascertain the identity of the article stolen, does not bear much 
upon the case. In cases in which it is necessary to identify 
the articles stolen, evidence of felonies other than the one charged 
in the indictment is admissible (3 Russell, p. 280). 4. The 
fourth exception is to prove guilty knowledge. When it becomes 



E. V. Gkiffin 
(No. 1). 



82 QUEENSLAND JUSTICE OF THE PEACE. 

^ (No^Tr"' "lecessary to prove guilty knowledge on the part of the prisoner, 

evidence of other felonies committed by him, though not charged 

in the indictment, are admissible for that purpose (3 Russell, p. 
287 ; Archbold, p. 201 ; Taylor, p. 341 ; Eex v. Oddy, 2 Den. 
C.C. 264) . Before the Court can allow the evidence of the robbery, 
they must decide whether evidence of the possession of the 
stolen property by the prisoner in Rockhampton was evidence 
of his murder of the troopers some days after. 5. Evidence 
of other felonies than that charged in the indictment may some- 
times be admitted to prove guilty intent, but the possession 
of the stolen notes does not tend to prove that the prisoner 
intended to murder the troopers, and therefore the evidence is 
inadmissible. (3 Russell, page 288. Taylor, page 341). Such 
evidence is usually admitted when there is a question of malice, 
but the evidence was not offered upon that ground in the present 
case, and there was no direct evidence to support such an assertion. 

LuTWYCHE J. : Does not the evidence tend to show pre- 
meditation or deUberation on the part of the prisoner ? 

MacDevitt : Still evidence of premeditation is not admissible 
unless it comes within some recognised exception to the rule, which 
says that no evidence shall be given except that which goes directly 
or indirectly to prove the guilt or innocence of the prisoner, and 
evidence of malice prepense must have reference directly to the 
act of murder. Even if the prisoner admitted that he had com- 
mitted another felony, it could not be used as evidence against 
him in the case he was being tried for. On the grounds men- 
tioned the conviction cannot stand. He cited also R. v. Clewes 
(4 C. & P. 221) ; R. v. Ellis (6 B. & C. 147) ; B. v. Oddy (2 Den. 
C.C. 264) ; R. v. Butler (2 C. & K. 221) ; R. v. Geering (18 L.J., 
N.S., M.C. 215) ; R. v. Toke (Roscoe's Nisi Prius, 288). 

Pring A.G. and Lilley Q.C., for the Crown. 

Cockle C.J. : We will not trouble the learned counsel for the 
Crown. 

Pring A.G. : It might assist the Court if I refer to the cases of 
R. V. Palmer (see Report in Wills on Circumstantial Evidence) in 
which evidence of a forgery committed by the prisoner was given 
in support of the charge of murder ; R. v. Courvoisier (9 C. & P- 
362) ; R. V. Garner (3 F. & F. 681) ; and R. v. Dossett (2 C. & K. 
306). 



CRIMINAL REPORTS, 1860-1907. 



33 



Cockle C.J. : It is due to Mr. MacDevitt, who has zealously 
and learnedly argued the case on behalf of the convicted prisoner, 
that the Court should give reasons for the decision to which we 
have now come. We fully assent to much, or the greater part, 
of what has been energetically urged upon us by Mr. MacDevitt. 
If evidence were tendered when a man is on his trial for one offence, 
of his having been guilty of another offence, and if such evidence 
were tendered for the purpose of showing that he was a man of 
vicious disposition, and therefore Ukely to have committed the 
offence for which he was tried, such evidence would be not merely 
irrelevant, but inadmissible, and its admission would vitiate the 
verdict. Supposing that, in the case of a man on his trial for one 
offence, evidence is tendered to show that he had been reasonably 
suspected of having committed another offence, and that he was 
a man of bad reputation and character, and so the more Hkely to 
have committed the first offence, such evidence would be clearly 
inadmissible, and would also vitiate the verdict. The Court 
will even go the length Mr. MacDevitt has gone, and say that if a 
man were on his trial for one offence, and evidence were tendered to 
show that he had admitted that he had perpetrated and committed 
an offence Uke that for which he was being tried, and that he 
had been tried, and that he had a strong predisposition to commit 
the offence, then such evidence ought to be excluded, and if 
admitted the verdict would be vitiated. But, supposing evidence 
were tendered which, while inadmissible on account of some of 
the reasons I have stated, was admissible on some other ground, 
why then the single ground for admission would override aU the 
grounds for exclusion, and the evidence must be admitted in the 
case to be dealt with, according to the rules of law and evidence, 
by the tribunal before which the man was being tried. 

Now, is there any reason in the present case which will justify 
the admission of evidence apparently so open to objection ? What 
was the first enquiry made when the news of the crime was 
published ? Why, what could have been the motive of the per- 
petrator ? Surely no ordinary reasoning man would see in that 
anything objectionable ; it is a question not only most natural, 
but one the solution of which is most important for the purposes 
of justice. Now, Mr. MacDevitt appeared to say that a motive 
was not by that name included amongst the cases for exception 
to the usual rule of exclusion, although he mentioned " intent " 
as one of the exceptions. It is not necessary for the Court to 
say, nor perhaps would it be very easy to point out the precise 
c 



B. V. Gbiffin 
(No. 1). 

Cockle, C.J. 



34 



QUEENSLAND JUSTICE OF THE PEACE. 



R. I). Griffin 
(No. 1). 

Cockle C.J. 



distinction between motive and intent, but I can see many cases 
in which motive and intent have almost the same meaning. For 
instance, a man is charged with shooting a man with intent to kill 
him. What was his motive ? To kill this person ; why there is 
his intent and motive. He shot at the man with intent to kill 
him, and his motive in shooting was to kiU him. So that is 
the possible distinction between the words motive and intent. 
In the present case, assuming on the facts as stated, that there 
was a robbery which had been committed prior to the commission 
of the murder, can it be said that the result of the murder would 
not be to render an enquiry into the circumstances of the robbery 
more difficult, and that it would tend to baffle the researches of 
justice into the commission of the robbery ? If such were the 
result, would it, in the mind of the person who committed the 
robbery, be an expected result of the murder ? The tribunal 
'before whom the case is tried must say whether the person against 
whom the evidence is offered would have sufficient intelUgence to 
see that that might be the result, and, if they aimed at that 
conclusion, he must be taken to have expected it. Did the 
prisoner desire such a result ? It is not necessary for them to 
say that he either expected it or desired it, but, if he expected it, 
he might desire it, and that would constitute a possible motive, 
which surely ought not to be excluded from a jury. It does not 
foUow that the jury should be compelled to deem that motive 
a sufficient one to induce them to act upon it and convict the 
person accused. The Court has only to determine whether 
the evidence should be admitted, and we think that aU motives 
which might have actuated the accused person are fairly matter 
to be laid before a jury, and it would be for them, in their own 
common sense, to determine what weight to attach- to the cir- 
cumstance. That, I think, being the case, the appeal must he 
dismissed. 



LutwyeheJ. LuTWYCHE J. : I agree -with the Chief Justice that the con- 

viction must be affirmed. It appears to me that any act may he 
given in evidence which would or might operate as a motive 
upon the mind of any man. If it did so, it may be given in 
evidence against the prisoner. The whole of the evidence which 
was objected to seems to me to form part of the res gestae of the 
case, and to be indivisibly connected one part with another, from 
the very beginning, when the prisoner received the money from 
the Chinamen at Clermont up to the commission of the robbery. 



CRIMINAL REPORTS, 1860-1907. 



35 



Therefore that evidence contained facts which were brought 
before a jury to show the motive for the commission of the 
murder ; or, at any rate, facts which might have induced any other 
man than the prisoner to commit the murder. When the robbery 
was once committed we come to the circumstances attending 
the murder, and we find that the bags were sealed at Power's 
request by the prisoner. If another man, placed in the same 
position as the prisoner, had committed the robbery, or was, or 
might be, in fear of apprehension, surely then evidence of the same 
facts might be given against the prisoner, not as furnishing an 
adequate motive, but as furnishing some motive, for acting as 
he did. The conviction must be affirmed. 
Solicitor for prisoner : Rees Jones. 



R. t). Gbiffin 
(No. 1). 

Lutwyohe J. 



[1 S.C.R. 182.— Note.- 



[In Banco.] 
R. V. GRIFFIN (No. 2). 

-29 Vic, Ko. 13, is repealed, see now s. 669 of Criminal Code, 
to same effect as s. 51 of that Act.] 



Mandamus — Circuit Court — Judge of Assize — Crown Case Reserved 
— Amendment — Comment on Judge's summing up — Question 
of fact — Criminal Practice Act of 1865 (29 Vic, No. 13), 
ss. 48, 51. 

Where a Judge of Assize has refused to state a point raised by counsel in a 
Crown Case Reserved by him on other points, the proper time to bring the matter 
before the Full Court is on the hearing of the Crown Case Reserved. 

A comment made by the Judge in the course of summing up on the facts of 
the case is not a pomt of law that can be reserved. 

Qucere whether a mandamus will lie against a Jut^e of Assize. 

Motion for a rule nisi for a. mandamus addressed to the Judge 
of the Circuit Court, at Rockhampton, commanding him to state 
a case for the consideration of the Full Court. 

The prisoner Griffin had been convicted on a charge of murder, 
and a Crown Case had been reserved, and judgment delivered 
thereon as above (ante p. 33^. 

All the other necessary facts appear in the argument of counsel 
and the judgments of the learned Judge's. 



1868. 
15th May. 

Cockle G.J. 
Lutuiyche J. 



MacDevitt and Griffith appeared to move for rule nisi. 



36 QUEENSLAND JUSTICE OP THE PEACE. 

^' (N^T™ Cockle C.J. ": The Judge of the last Circuit Court, at Rock- 
— — hampton, has stated a case for the Full Court, and the Court, 

after hearing it argued, has dismissed the appeal. 

MacDevitt : The object of the present motion is to get the 
learned Judge to state a case containing and embodying an 
objection to his summing up. 

Cockle C.J. : The Court had power under the original case, if 
the matter had been suggested, to have remitted the case to the 
learned Judge. That was the proper time to have applied. If 
there was anything in the point the learned Judge would have 
remembered it. 

MacDevitt : I submit the learned Judge refused to embody the 
objection in the special case submitted to the Full Court. 

Cockle C.J. : Look at s. 51 of The Criminal Practice Act, 
29 Vic, No. 13. 

MacDevitt : I have read that section ; it says " The Judges, 
when a case has been reserved for their opinion, shaU have power, 
if they think fit, to cause the case or certificate to be sent back 
for amendment, and thereupon the same shall be amended 
accordingly, and judgment shall be delivered after it shall have 
been amended." There could be no object in applying under that 
section for an amendment of the special case, because the learned 
Judge had already refused to embody the objection in it. Section 
48 of the same Act, however, lays it down that " When any persoa 
shall have been convicted of any treason, felony, or misdeamenour, 
before any Court of Criminal Jurisdiction within the colony, the 
Judge, or Chairman, or Justices of the Peace, before whom the 
case shall have been tried, shall, on the application of counsel, 
made during the trial, or without such application, in his or their 
own discretion, reserve any question or questions of law which 
shall have arisen on the trial for the consideration of the Judges of 
the Supreme Court, and thereupon shall have authority to respite 
execution of the judgment on such conviction, or postpone the 
judgment until such question or questions shall have been con- 
sidered and decided." The learned Judge, at the trial, refused to 
state a special case to the Full Court embodying the objection 
taken at the trial, as he alleged it did not come within that section, 
as it was not a point of law but of fact. That is the reason why 
no application was made to the Court to send back the special 



CEIMINAL EEPOETS, 1860-1907. 37 

-case to the learned Judge who tried it, to embody that objection ^- ^<^^^^^^^ 
in it. He cited Ex parte Inhabitants of Jarvin (9 Dowl. 120) ; — !_ 

Tapping, p. 235. 

LuTWYCHE J. : If the apphcation had been made when the 
special case was being argued, and the Chief Justice had thought 
it was a point which ought to be embodied in that case, I would 
have embodied it, whatever my own opinion might be. 

MacDemtt : I regret that that course has not been pursued. 
It was distinctly understood that the learned Judge who tried the 
«ase had consulted with the Chief Justice, and had determined that 
the only point he would submit to the Full Court was the one which 
has already been decided. 

LuTWYCHE J. : I spoke to the Chief Justice about it, but did 
not consult with him. I acted upon my own responsibility. 

MacDevitt : The Circuit Court at Rockhampton is an inferior 
Court to the Supreme Court, and it was the duty of the Judge 
to have reserved any point of law raised in the course of the trial 
for the consideration of the Full Court. 

LuTWYCHE J. : The Circuit Court at Rockhampton is a superior 
Court of Record. The presiding Judge at the trial was only bound 
to reserve points of law, and not matters of fact, for the consider- 
ation of the Full Court, and it rested with him to determine whether 
the points raised were matters of law or fact. It is clear no action 
can lie against the Judge of a Superior Court, except for refusing 
to sign a bUl of exceptions. I would like to be shown some 
authority to show that a mandamus can lie against the Judge of 
a Superior Court. 

MacDevitt : By The Criminal Practice Act of 1865, the Judge 
who tries cases in this colony is put upon the same footing as 
Justices of Quarter Sessions in England. It cannot be contended 
that a mandamus will not he to a Justice of Quarter Sessions, or 
other judges of inferior Courts trying criminal cases, and why 
should it not be addressed to the Judges of courts of oyer and 
terminer. 

Cockle C.J. : You could attach the Judge if that were so. 

MacDevitt : I rely principally on the fact that His Honour, 
Mr. Justice Lutwyche, in summing up, told the jury " If the 
prisoner did not commit the murder, who did ? This is a question 



88 



QUEENSLAND JUSTICE OF THE PEACE. 



B V. Griffin 
(No. 2). 



Cockle C.J. 



which you must answer for yourselves before you can give a, 
verdict upon your consciences in this case." When the jury had 
retired I objected to that ruling, and asked the learned Judge to 
reserve it. 

LuTWYCHE J. : That is quite correct, and I told you to sit down ; 
that you were making comments upon my observations to the jury 
upon a question of fact. It was not the thing upon such a sad and 
solemn occasion to have an altercation with counsel ; and having 
some tenderness, perhaps, for the inexperience of the three gentle- 
men who were engaged in defending the prisoner, I said I would 
take a note of the objection and speak to the Chief Justice about 
it. I did both. 

MacDevitt : I submit that in cases in which a cUent's life and 
liberty are at stake, his counsel are justified in taking advantage 
of every chance which the facts of the case and the law permit. 

Cockle C.J. : In the first place the Court is not satisfied that 
a mandamus wiU lie to a Judge of Assize, and therefore we will be 
spared the painful notoriety of having been the first Court probably 
to mandamtts one of its own Judges. In the second place, I think 
that the proper time to have asked Mr. Justice Lutwyche to have 
placed an objection upon the case would have been when the 
Judges sat as a Court of Criminal Appeal to hear the case reserved, 
because then we might, if we had thought fit, have caused the case 
or certificate to be sent back for amendment. I have very grave 
doubts whether a mandarnvs will lie in any case, because the Court 
of Criminal Appeal is formed upon the model of the Court of 
Appeal in England, which consisted of the Lord Chief Baron, the 
two Chief Justices, and several other Judges. It may be some 
satisfaction to Mr. MacDevitt to know that the Court can see very 
\\ ell that even if the point had been before us when the special 
case was signed before the Court of Criminal Appeal, we would 
scarcely have invited the learned Judge who presided at the trial 
to amend his case. A Judge's summing up must not be regarded 
as consisting of a set of separate sentences, but must be taken as 
a ^\hole. The part which has been objected to in the present 
case might, under one aspect, appear a very strong way of putting 
the matter to the jury ; but yet, if the whole charge were con- 
sidered, it might be the very best way of putting to the jury the 
true point which they had to decide. It was not a point of law 
that is wished to be reserved, but a criticism or comment on the 
learned Judge's summing up. I think the motion ought to be 
refused. 



CKIMINAL REPORTS, 1860-1907. 



39 



LuTWYCHE J. : The motion is made too late. A suggestion 
should have been made when the special case was being heard, for 
that would have been the time to have inserted the proposed 
amendment if the Court had thought such an amendment proper 
and desirable. I also think the point which was said to be a point 
of law was simply a comment made by the Judge in the course of 
his summing up on the facts in the case. As the Chief Justice 
has said, we must not look at isolated sentences, but at the whole 
of the summing up, in order to see the sense in which the words 
were used. They were used by me to convey to the jury my strong 
impression that the prisoner was guilty. It was only another form 
of saying " Nobody but the prisoner could have committed the 
deed." 

[His Honour then read a considerable portion of his summing up 
from the Northern Argus, which contained, he said, the best report 
of his charge to the jury,] 

I very much regret that the point has been brought before the 
Court, for it is very irregular. When I was in New South Wales 
the practice of relying upon a Judge's summing up prevailed a 
good deal too much in the Supreme Court. So far as Ues in my 
power, I will take care to check that practice up here. 1 think the. 
motion must be dismissed. 

Solicitor for prisoner ; Rees Jones. 



E. V. Gkiffin 
(No. 2); 

Lutwyche J. 



[In Banco.] 
R. V. PEARSON. 
[2 S,C.R. 21,] 
Criminal Law — Venire de novo — Affidavit of juror — New trial 
refused. 
On an application for a writ of venire facias de novo, on the ground of irregu- 
larities in connection with the dehberationa of the jury on a criminal trial, Jield, 
that an affidavit by one of the jurymen as to the actions of the jury after their 
retirement from the Court could not be read upon such an application. 
*B. V. Murphy (7 N.S.W. S.C.R. 24) doubted. 

Application to make absolute a rule nisi for a writ of venire 
facias de novo, and for a writ of certiorari. 

George Pearson was arraigned before His Honour Judge Innes 
and a common jury at Maryborough on the 7th August, 1868, on a 



1868. 
27th November. 

Cockle C.J. 
Lutwyche J, 



*TbJB decision was reversed by the Privy Council (L.R. 2 P.O. 535). 



40 



QUEENSLAND JUSTICE OF THE PEACE. 



R. V. Pearson, charge of feloniously stealing two auriferous nuggets, valued at 
£64, the property of George Smith, Pearson being a bailee. 

The prisoner was found guilty, and sentenced to eighteen 
months' imprisonment with hard labour in the Brisbane Gaol. 
On the termination of the case, the jury were locked up in the 
public Courthouse, and given in charge to the baihff of the Court. 
The jury-room was occupied by another jury. Howard, one of 
the jurymen, had siace stated that while the jury were locked 
up ia the Courthouse, and considering their verdict, the police 
entered the Courthouse with the prisoner Pearson and other 
prisoners, and remained there during a portion of the time the 
jury were deliberating. Upon the reopening of the Court, the 
jury complained to the Judge of the intrusion of the police. 
While the jury were locked up, the depositions, the notes of the 
Crown Prosecutor and of the counsel for the prisoner, Roscoe's 
Criminal Evidence, and other legal works, were in the Court, 
and the jury had access to and read some of them. 

Blake and Handy, for the prisoner, cited R. v. Murphy (7 
N.S.W.R. 24), then under appeal to the Privy Council, Straker 
V. Graham (4 M. & W. 721), Burgess v. Langley (1 D. & L. 21), 
Harvey v. Hewitt (8 D.P.C. 598), B. v. Fowler (4 B. & Aid. 273), 
B. V. Bertrand (L.R. 1 P.C. 520), Gould v. Oliver (2 M. & G. 288), 
and read affidavits in corroboration of the facts. 

Cockle C.J. Cockle C.J. : This appUcation must be refused, on the ground 

that the evidence is technically insufficient and inadmissible. The 
presumption to be drawn from the statement that notes and books 
were lying on the Courthouse table is too faint to induce the 
Court to grant the rule. 

Lutwyche J. LuTWYCHB J. : It is quite clear from the authorities that the 

affidavit of a juryman cannot be received as to what passed while 
the jury were locked up in a private room, and that the statement 
of a juror to another person of what passed in that private room 
cannot be accepted. There is nothing, therefore, for the Court 
to go upon. I consider this case is distinguishable from that 
of B. V. Murphy. I do not see anything in the case to infer a 
miscarriage of justice. I am not at all prepared to go the length 
that the Full Court in New South Wales has gone in B. v. Murphy, 
simply because the jury read the reports of the trial, for they read 
them only during the first three days, and if they had fornied 
any erroneous impression of the evidence, they could have been 
corrected by the Judge in summing up. 

Bule refused. 



CBIMINAL EEPOETS, 1860-1907. 



41 



[In Banco ] 

R. V. WILKIE. 

[2 S.C.R. 33.— Note.— 29 Vic, No. 6, is repealed. See s. 398 v. of Criminal Code. 

As to receiving stolen property, see now s. 433 of Criminal Code.] 

Criminal Law — Embezzlement — Larceny Act of 1865 (29 Vic, 
A'O. 6), ss. 73, 75, 76, 96 — Person in service of the Crown. 

The word " fraudulently," in s. 75 of 29 Vic, No. 6, is to be applied to the 
word " embezzle," which precedes it in the section, as well as to the words 
" apply and dispose of" which follow. 

Where a servant of the Crown has received from the Treasury moneys payable 
to other persons, and there is no evidence that he received them by virtue of his 
employment, he cannot be convicted of embezzlement of those moneys under 
.8. 75 of the Larceny Act. 

Crown Case Reserved by Lutwyche J. 

The prisoner was indicted on an information under s. 75 of the 
Larceny Act of 1865, charging him with three separate offences of 
embezzlement and stealing, and a general verdict of guilty was 
xeturned. The facts appear in the judgment. It was submitted 
that the case for the Crown had failed in that the moneys men- 
tioned in the information were the property of the person to whom 
they were payable, and not of Her Majesty ; that ttere was no 
■evidence of the prisoner having received the said moneys or having 
■embezzled them ; that there was no evidence of the prisoner 
having received the moneys by virtue of his employment ; that 
there was no refusal by the prisoner to account for the moneys, 
and that it, in fact, having been shown that the moneys had been 
paid over, there was in law no embezzlement and no fraudulent 
intention on the part of the prisoner. The learned Judge refused 
to so direct the jury, but reserved the objections for the Full 
•Court. 

The prisoner was convicted and sentenced to three years penal 
servitude. 

Blake Q.C. and Grfflth, for the prisoner, referred to R. v. Moah 
(Dears 626 ; 25 L.J., M.C., 66). The persons, to whom payments 
were made, might have received them at the Treasury themselves. 
The money must be in transit to the employer. R. v. Hockings 
(1 Den. 584 ; 2 Russell, 449-50) ; R. v. Gill (Dears. 289) ; R. v. 
Smith (R. & R. 516). • The receipt from the bank is receipt from 
the Crown. R. v. Gorbutt (Dears & B. 166) ; R. v. Hodgson (3 
■C. & P. 422) ; R. v. Evan Owen Jones (7 C. & P. 833) ; R. v. 
Williams (7 C. & P. 338). 



1869. 

9th, lOlh 
September. 

Cockle C.J. 
Lutwyche J. 



42 



QUEENSLAND JUSTICE OP THE PEACE. 



R. V. WiLKiE. Pring Q.C., for the Crown : Section 75, refers as much to money 

coming from the Treasury as to money going from the Treasury 
entrusted to him by virtue of his employment. 

Lutwyche J. LtrTWYCHE J. : I have now no hesitation in coming to the con- 

clusion that the conviction was erroneous. I certainly thought, 
at the trial, that the words of s. 73 of the Larceny Act, and those 
of s. 75 so far as related to the offence of embezzlement, being, 
different in phraseology, the Legislature might have intended 
to apply a more restricted meaning than was formerly applied 
to the word embezzlement. I am sorry that I had no oppor- 
tunity at the trial of fortifjdng my judgment by a reference to 
any of those cases just cited, for I was only referred to R. v. Moah. 
I certainly think now that the word " embezzle " means fraudu- 
lent and felonious embezzlement. I am more lead to that con- 
clusion by a more careful consideration of the terms of s. 75, 
I take it, therefore, that the Legislature meant to apply the 
word " fraudulent " to the word embezzle, as well as to the 
words " apply or dispose of ; " and the context seems to strengthea 
that conclusion. Another clause of the Statute (s. 96) has been 
pointed out to me by the Chief Justice — that as to the receiving 
of stolen goods. The words are : 

" Whosoever shall receive any chattel, money, valuable security or other 
property whatsoever, the stealing, taking, extorting, obtaining, embezzling or 
otherwise disposing whereof shall amount to a felony either at common law or 
by virtue of this Act, knowing the same to have been feloniously taken, stolen, 

shall be guilty of felony, and may be indicted an^ convicted as- 

an accessory after the fact or for a substantive felony, and in the latter case, 
whether the principal felon shall or shall not have been previously convicted or 
shall or shall not be answerable to justice, and every such receiver howsoever 
convicted shall be liable, at the discretion of the Court, to be kept in penal 
servitude for any term not exceeding fourteen years, etc." 

It cannot be intended that a simple receipt of any property, which 
has been stolen, will make a man liable to be indicted as a receiver, 
for, if so, a constable who takes stolen goods into his possession 
may be indicted under s. 96. We must construe enactments 
according to the meaning of terms which have obtained in the 
law a certain definite meaning ; and I think I have been wrong 
in the necessarily hasty view I took on the occasion of the trial. 
I should have been glad to have received more assistance than 
I did ; but, of course, a judge has to do the best he can at the 
time. I was not freed from responsibility, if I did not get the 
amount of assistance which I might fairly expect from the Bar, 



CRIMINAL EEPOETS, 1860-1907. 



43 



In the Larceny Act a distinction between embezzlement and 
larceny is carefuUy drawn. There is a distinct section (s. 75) 
with reference to the offence of larceny by persons in the Queens- 
land Civil Service and the PoUce, and another clause which 
relates to embezzlement, and to a fraudulent application or 
distribution of money ; and perhaps if the words " fraudulent 
appUcation " had been followed in the information in this case, 
the evidence might have supported it. But there would still 
have remained the question of fraud, which I was asked to put 
to the jury, and'thought it unnecessary to do so. I told the 
jury it was quite sufficient, if they thought there had been a 
wilful misappropriation of public money by the prisoner, and 
declined to put that question to them. The main question in 
this case turned upon that of embezzlement, and I certainly 
think there has been no evidence of embezzlement, in the meaning 
of that term that has been laid down, to go to the jury. The 
prisoner received money from, the Treasury, representing the 
Queen. He did not, as was the case with the prisoner whom I 
tried at Ipswich in April last, intercept money on its way to the 
Treasury ; but he received it from the Treasury, and, therefore, 
if other facts would have supported the charge, he might have been 
found guUty of larceny, if my attention had been called to the 
fact that the evidence would support such charge. Had my 
attention been so called, I might then have directed the jury 
to find the prisoner guilty of larceny, not embezzlement. I 
cannot complain that I was not told the offence, if anything, 
amounted to larceny. I ought to have seen that for myself, 
but I did not. The jury having found a general verdict of 
guilty, the conviction must be quashed according to the authority 
of R. V. Gorbutt (supra), even if the evidence would have sup- 
ported a charge of larceny. Under all the circumsances, I am 
clearly of opinion that the conviction was erroneous, and ought to 
be quashed. 



B. u. WiLKIE. 

Lutwyche J. 



Cockle C.J. : I concur. 



Cockle C.J. 



Conviction quashed. 



44 QUEENSLAND JUSTICE OF THE PEACE. 

R. V. ARCHIBALD. 
[2 S.C.R. 47.— Note.— Footnote should read See 58 Vic., No. 23, s. 10 (Criminal 
Law Amendment Act of 1894). As to confessions see also R. v. Many Many 
(6 Q.L.J. 224, post) and MacNamara v. Edwards, Ex parte Edwards (1907, 
S.R.Q. 9, post.] 

1869. Crown Case Reserved — Voluntary confession — Evidence — 0§er of 

7th December. j /-r j ■ 

'pardon — Caution . 

1 iitiaiche J ^- '^^° ^^^ ^^^"^ arrested as an accessory before the fact to a murder was 

informed by the lock-up keeper that there was a reward offered and a free 

pardon, to any one but the murderer, to any person giving information which 
would lead to the apprehension of the miirderer. A. said he had intended to 
teU the Police Inspector what he knew on his arrest, and the lock-up keeper 
repUed that he should have done so, as it would have been better for himself. 
A. then, at his own request, saw the Police Inspector, and said he wished to 
make a statement. The inspector then took A. before a magistrate, and both 
the inspector and the magistrate warned A. that any statement made by liiin 
might be given in evidence against him. A. then made a statement, and when 
the same was about half completed the magistrate told him that the evidence 
was not being received as Queen's Evidence. A. completed the statement. 

Hdd that the statement was not induced by the o£Eer of reward or pardon, 
and being voluntary was rightly admitted against the prisoner.* 

R. V. Rosier (Phillips Ev., 414), approved. 

R. V. BlacHbum (6 Cox C.C. 333) distinguished. 

Crown Case Reserved by Mr. Justice Lutwyche, on the trial 
of Alexander Archibald at the Rockhampton Circuit Court, in 
October last, for being an accessory before the fact to the murder 
of Patrick Halligan, by George Palmer and John Williams. 

Pring A.G. And Griffith, for the Crown. 

Blake Q.C. for the prisoner. 

The case stated was as follows : — " In the course of the trial, 
the Attorney-General tendered, on behalf of the Crown, a state- 
ment made by the prisoner in the presence of a magistrate of 
the territory, which statement was taken down in writing in the 
presence of the magistrate and the prisoner, and was afterwards 
read over to the prisoner and signed by him. An objection was 
raised to the admissibility of this document, on the ground 
that it was made after a promise had been given to the prisoner, 
and while he was under arrest, but I over-ruled the objection, 
and allowed the statement to go to a jury, reserving, at the 
request of the prisoner's advocate, for the opinion of the Supreme 

*See 58 Vic, No. 2, s. 10. 



CRIMINAL REPORTS, 1860-1907. 45 

Court, this question of law : Was the statement properly received ^- "• Arohibald. 
in evidence or not ? On the night of the 12th May last, at a 
pubUc meeting of the inhabitants of Rockhampton, held at the 
Union Hotel Theatre, the Police Magistrate of Rockhampton 
received a telegram purporting to have been despatched by the 
Colonial Secretary, in which a reward of £300 was offered for any 
information that would lead to the apprehension or conviction of 
the murderer or murderers of Patrick Halligan, and a free pardon 
to the accompUce not actually the murderer. It did not appear 
that the prisoner, who was arrested the same night about 9 p.m., 
at the Lean Creek Hotel, three miles from Rockhampton, was 
at the meeting ; but, after his arrest, and while he was in the 
lock-up, he was told by the lock-up keeper that there was a 
reward offered and a free pardon to any person not actually the 
murderer. The prisoner said that he had a mind to tell Mr. 
EUiott (Sub-inspector of PoUce) when he was arrested, and the 
lock-up keeper replied that he should have done so, as it would 
have been better for himself. The prisoner then said that he 
would tell Mr. EUiott all that he knew about it. The prisoner 
soon afterwards saw Mr. Elliott and said, " I was coming in to 
tell you about it, but I was waiting until the meeting should be 
over, and a reward offered, as I wished you to get the reward." 
The prisoner next told Mr. Elliott that he wished to make a 
statement. Mr. Elliott took the prisoner before Mr. Murray, 
the Police Magistrate of Springsure, and Chief Inspector of PoUce 
of the Northern District, and said to the prisoner : " Do you 
know that he is a magistrate ? Do you wish to make a state- 
ment ? " The prisoner said that he knew Mr. Murray, and that 
he did wish to make a statement. Mr. ElUott said, "Whatever 
you say will be taken down in writing, and given in evidence 
against you." The prisoner said, " All right," or " Oh ! very 
well," and Mr. Murray then repeated the caution, saying, " Now, 
Archibald, be cautious what you say, as it will be taken down in 
writing and may be used against you on your trial." The 
prisoner said, " All right, I understand what I am about." Mr. 
Murray, in giving his evidence, deposed that when the statement 
was about half completed he told the prisoner to bear in mind 
that the statement was not being accepted as Queen's Evidence, 
and that the Judge would have to decide that question ; but 
the Sergeant of the Police, who was engaged in reducing the 
prisoner's statement into writing, deposed that he did not hear 
Mr. Murray say anything about Queen's Evidence, and that it 



46 QUEENSLAND JUSTICE OP THE PEACE. 

E. V. Aechiealp. could not have been said without his hearing it. Nothing was 
said either by or to the prisoner after he had been brought before 
Mr. Murray about a pardon or a reward. The statement which 
was given in evidence contained admissions tending strongly 
to show the guilt of the prisoner, and he was found guilty and 
sentenced to death, but remains in Rockhampton gaol pending 
the decision of the Supreme Court on the question of law above 
stated."' !. 

Blake contended that the mere knowledge by the prisoner that 
a reward and free pardon had been offered by the Government 
for the discovery of any person, who had not actually committed 
the murder, would not be sufficient to render his confession 
inadmissible ; but if it was shown, in addition, that the knowledge 
had operated on the prisoner's mind in making the confession, 
then it would be rendered inadmissible : R. v. Boswell (C. & M. 
684, and 3 Russell on Crimes, 373) ; R. v. Blackburn and others 
(6 Cox 333). In Archibald's case it was shown that he had the 
knowledge, and that it had operated on his mind, and the caution 
he had received was immaterial. The prisoner may have said 
to himself : " If I don't make this confession I cannot benefit 
from it ; I will run the chance of it being used against me." 
The caution might not have removed the state of mind under 
which Archibald was induced to make the statement. He might 
not have beUeved the caution. He was told of the proclamation, 
and immediately expressed the wish to make a confession. He 
was in the very position of a person to whom the proclamation 
was directed, being cognizant of the crime, but not having com- 
mitted it. Would anyone say that the proclamation had not 
operated very strongly on the prisoner's mind. 

[Ltjtwychb J. : I have no doubt it would. I hope that in all 
future proclamations accessories before the fact will be expressly 
excepted from the offer of pardon or reward.] 

It was evident that the caution was not sufficient to remove 
the impression from the prisoner's mind produced by the 
proclamation, and it was reasonable to say that the making of 
the confession was the very thing that would have entitled him 
to the pardon offered. If he had said one word about his state- 
ment being secured as evidence he must have been discharged, 
as his case would then be that of B. v. Blackburn. There was, 
however, no substantial difference between the two. The question 
was : " Was the evidence purely voluntary ? " It was not 



CRIMINAL REPORTS, 1860-1907. 47 

purely voluntary if there had been anything to influence the ^- "■ A.rchibald. 
prisoner, such as the proclamation in this case. 

Pring A.G., for the Crown : The case of R. v. Boswell had been 
fully distinguished in the subsequent case of jR. v. Dinghy (1 C. 
& K. 637), which was particularly applicable to the present case. 
In R. V. Dingley a caution had been given, but not in R. v. Boswell, 
and in the former the confession was held admissible. In Archi- 
bald's case he was twice told that his statement would be used 
against him, and no promise whatever was made to him, and the 
caution was given not by a person not having authority, but by a 
justice of the peace. In Boswell' s Case the statement was ren- 
dered inadmissible on the express ground that it was made on an 
inducement held out by an authorised person. The present 
ease differed entirely from that. Not only was no inducement 
held out by an authorised person, but there was evidence that 
he was distinctly cautioned by an authorised person, not only 
once, but twice, and told there was no hope that his statement 
■would be secured as Queen's evidence. It would not do to say 
that the mere knowledge of a reward having been offered oper- 
ated to such an extent on the prisoner's mind that the impression 
could not have been got rid of by a twice-repeated caution. The 
prisoner did not intimate at the time that he made the statement 
that the offer of pardon and reward had operated on his mind 
with respect to his own position ; but he told Mr. Elliott that 
he made the statement in order to enable him, Elliott, to get the 
reward. In the case of R. v. Clewes (4 C. & P. 221), an absolute 
inducement had been given, a hope of pardon held out ; but the 
hope was destroyed, and the confession held to be admissible. 
If- the learned counsel for the prisoner was right in his argument, 
the mere knowledge of a free pardon having been offered must, 
per se, be held to operate on a prisoner's mind, notwithstanding 
repeated cautioning. In Blackburn's Case a caution was given, 
but a distinction between that and Archibald's was : that in the 
former there had been something more than a simple knowledge 
of pardon offered on the part of the prisoner. It was shown 
that he had apparently a notion that he would be received as 
Queen's evidence. There had been referred to at the trial the 
cases of R. v. Rosier and R. v. Lingate (Phillips on Evidence, 414) . 
These two cases went to show that a caution given subsequently 
to an offer of reward or pardon was sufficient to efface such offer. 
In the case of R. v. Howes (3 Russell, 384), the prisoner, previous 
to making a statement, was told that it might do him good ; 



48 QUEENSLAND JUSTICE OF THE PEACE. 

E. V. Aeohibald. i)ut it Tffg^s subsequently held to be admissible against him. Coun- 
sel also referred to R. v. Berrigan (3 Russell 376). 

Blake, in reply, contended that Archibald's case was entirely 
different from any cited by his learned friend. In those oases, 
out of the three in which an inducement was held out, in two it 
was held out by constables, and in the third, by a coroner, and it 
was afterwards negatived by a magistrate, when the Court held 
that the caution of the latter was sufficient to efface any impression 
received by the prisoner from what the coroner said. It was not 
to be supposed that Archibald would necessarily place much 
reliance on the assertion of Mr. Murray or Mr. EUiott that the 
confession would be used against him. They were not in a 
position to say whether or not it would have been used as evidence 
against the prisoner. The proclamation was issued by the 
Governor of the Colony through the Government, and Mr. Murray 
and Mr. Elliott could not interfere. 

Cockle C.J. Cockle C.J. : Blackburn's case certainly goes a very great way. 

It appears that the prisoner was told, before he would say any- 
thing, that his statement would be used against him. That 
statement was tendered as evidence to the presiding judge, Mr. 
Justice Talfourd, and rejected by him, after consultation by Mr. 
Justice Williams, on the ground that it appeared that the prisoner, 
in making it, had a notion that he would be received as Queen's 
evidence. We should, of course, give every consideration to cases 
decided by eminent judges, but we are also bound to exercise 
judgment of our own in the matter. It must be remembered 
that, in these mixed cases of law and fact, it is almost impossible 
to lay down any rule that can be applied with certainty and 
definitely in all cases. We must, therefore, look in this case 
to the words used, and to the circumstances of the case, as dis- 
closed in the learned judge's report. The prisoner was indicted as 
an accessory before the fact to a murder alleged to have been 
comnjitted by two other persons. He was apprehended, and, 
when in custody, the lock-up keeper told him that a reward and 
free pardon had been offered to any person not actually the 
murderer. We ought not to interpret this offer as being addressed 
so directly to the prisoner as to lead him to think that it was a 
special offer to him, for at the time the number of persons who 
had been engaged in the transaction was uncertain. On being 
informed of the offer, prisoner said that he had a mind to tell 
Mr. Elliott when he was arrested, and the lock-up keeper rep 



CEIMINAL REPORTS, 1860-1907. ^ 49 

that he should have done so, as it would have been better for him- ^- "• Archibald. 

self. We may regard the alleged inducement in a double point Cookie C.J. 

of view — first, as an inducement arising from the offer of reward 

and pardon, and second, as an inducement from the lock-up 

keeper himself. These words of the lock-up keeper may be 

interpreted as meaning that it would have been better for the 

prisoner had he told sooner, or as a merely formal continuation of 

the conversation, or as an expression of opinion that he was too 

late in making his statement. On seeing Mr. Elliott, the prisoner's 

words seemed to be rather an excuse for making his statement so 

late, and it is possible that the interpretation put by him on the 

lock-up keeper's words was, that it was too late. If this is to 

be regarded as an inducement of either kind, I think if the 

prisoner had then and there told aU he had to tell to Mr. Elhott, 

that his statement ought not to have been admitted in evidence, 

and my learned brother has already intimated the same opinion. 

But he did not then and there make a statement to EUiott. 

EUiott took him at once before a magistrate, and, on his saying 

that he wished to make a statement, told him that whatever he 

said would be taken down in writing, and given in evidence 

against him. The learned counsel for the prisoner seemed 

to have abandoned the ground that the prisoner confessed on 

the strength of any inducement held out by the lock-up keeper, 

but argued on the ground of the inducement of the reward and 

pardon. I shall examine the matter, therefore, with reference 

to that ground. I think there can be no doubt that, if the prisoner 

made this statement under the reasonable belief that in doing so, 

he was either making it as a witness for the Crown, or doing 

something preUminary to becoming a witness for the Crown, 

then, on the strength of the recorded cases and general ground 

of jurisprudence and public policy, this statement should be 

excluded ; because, if once the notion get abroad that offers 

by the Government of reward and pardon are to be used as snares 

for admissions and confessions, they will fail as an inducement 

for confessions. We must, therefore, look to whether the 

prisoner had reasonable grounds for beheving that he was acting 

in the capacity of a witness for the Crown. To say that he 

acted under the influence of hope or fear would not, I think, 

cause the exclusion of this statement ; because most statements 

made in criminal cases are made under such influences. They 

were to consider whether Archibald made the statement under a 

reasonable behef that he did so as a witness, or preparatory to 



50 



QUEENSLAND JUSTICE OF THE PEACE. 



E. V. Abchibald. 
Cockle C.J. 



Lutwyche J. 



becoming so. There Avas nothing in the demeanour of Elliott 
calculated to inspire the prisoner with such a behef. He does 
not invite him to a confession, but takes him before a 
magistrate, puts questions to him which do not imply a very 
inviting demeanour, and tells him that what he says will be 
taken down and used as evidence against him. These words 
were not consistent with the making an impression that Archibald 
was to be treated as a witness. The words used by Murray 
were stronger still. He said to Archibald, " Be cautious what 
you say, as it will be taken down in writing, and may be used 
against you at your trial." Witnesses are not generally placed 
on their trial, and Archibald's object in making the confession 
was to avoid being tried. One would think that these words 
would have been sufficient to raise grave doubts in Archibald's 
mind as to whether when making this statement, he did so as a 
witness. I think, therefore, we must take it that there is sufficient 
evidence to show that any reasonable impression of T^chibald 
that he was to be taken as a witness must have been effaced from 
his mind. In the case of R. v. Rosier, the prisoner having been 
told that it would be better to confess, asked a magistrate if it 
would be better, and he replied that he could not say that it 
would. The subsequent confession was admitted. What the 
magistrate said there amounted to this " what you say, if you 
say anything, may endanger you." In that case the judges were 
unanimous in holding that the confession was admissible in evi- 
dence, on the ground that the magistrate's answer was sufficient 
to efface any impression that the constable might have raised. 
The case of R. v. Lingate is to the same effect. For these reasons 
I am of opinion that Archibald's statement must be deemed to 
have been voluntary, that it was properly admitted in evidence, 
and consequently that the conviction must be confirmed. 

Ltjtwyche J. : We have to consider how far the promise of 
pardon operated on the mind of Archibald, so as to induce him to 
make the statement. In the first place, it is to be observed that 
it does not appear he was present at the meeting when the tele- 
gram, purporting to be from the Colonial Secretary, was read, 
and that he received information of that fact from the lock-up 
keeper, a person who might have been telling him, for purposes 
of his own, an untrue story. If the statement had been made on 
such an untrue story it would have, consequently, been inad- 
missible. But, as the case stands, we must take it that, though 
the promise was made by the Colonial Secretary, the prisoner had 



CRIMINAL EEP0RT8, 1860-1907. 51 

no better knowledge of the fact than that obtained from the Ups ^- '•'• ■^ch^b^I'''- 
of a lock-up keeper, a person in a very inferior position. Then, Lutwyche J. 
how far does this promise operate on the prisoner's mind ? When 
EUiott goes in and sees him, he says : " I was coming in to tell 
you about it, but I was waiting until the meeting would be over, 
and a reward offered, as I wished you to get it." Not a word 
there about a pardon. So far, therefore, there is no affirmative 
evidence of the operation of the promise of pardon on the prisoner's 
mind. Being taken by Mr. Elliott before Mr. Murray, he is at once 
told by the former : " Whatever you say will be taken down 
in writing and given in evidence against you." Now, here was 
a person, in a superior position to the lock-up keeper, who gives 
him that direct warning, and that warning was repeated by Mr. 
Murray in still more precise terms, as follows : — "Now, Archi- 
bald, be cautious what you say, as it will be taken down in 
writing, and may be used against you at your trial." That, to 
my mind, would have been quite sufficient to have effaced any 
impression, if any such had been created, that he could obtain a 
pardon from the Crown. But, further, he was distinctly informed 
before the statement was completed, when it was half completed, 
that it was not being accepted as Queen's evidence, and that 
the judge would have to decide that question. There was affirm- 
ative testimony that he was so informed, and, although the 
constable who took down the prisoner's statement says that he 
did not hear it, and that, if said, he must have heard it, that 
proves little, for he may not have recollected that the words 
were used, or may not have gathered their purport. Unless we 
are to go to the length of saying that, after a reward has been 
offered by the Crown, no caution, however strong and precise in 
its terms, would be sufficient to prevent a prisoner's statement 
being used in evidence against him, I think we must hold that, 
in this case, the statement was properly received. Blackburn's 
case certainly goes a great way, but, the distinction is that there 
the judges came to the conclusion that there was affirmative 
evidence of an impression on the prisoner's mind that he would 
be received as Queen's evidence. Here there is no such affirm 
ative evidence, but it appears that such an idea was distinctly 
negatived. I prefer to rest my judgment on Rosiefs case, which 
was a decision of a Full Court, and appears to me to be most 
consistent with true principles. I think the conviction should 
be affirmed. 

Conviction affirmed. 



52 



QUEENSLAND JUSTICE OF THE PEACE. 



1869. 

1 7th December. 

1870. 

I6tU March. 

Cockle a.J. 
Lutwyche J. 



[In Banco]. 

GOLDSMITH v. ROCHE. 
[2 S.C.K. 55.] 

Cattle Stealing Prevention Act (17 Vic, No. 3), s. 3— Detention of 
a horse — Absence of stealing — Limitation — Practice — Supple- 
menting depositions by affidavits. 

A prohibition was granted to restrain further proceedings on an order for the 
restitution of a horse, under s. 3 of 17 Vic, No. 3, no evidence having been 
adduced that the horse was stolen, or stolen within twelve months of the com- 
mencement of the proceedings. 

Affidavits are not admissible to supplement the depositions as to what took 
place before justices. 

Quaere, whether s. 3 of 17 Vic, No. 3, is a penal section. 

Motion to make absolute a rule nisi for a prohibition restrain- 
ing G. W. EUott, P.M., H. T. Plews, and J. Wonderley, JJ.P., 
from further proceeding on an order, dated 19th November, 1869, 
whereby Frederick WiUiam Roche was ordered to deliver up a 
horse to Edward Goldsmith, who had laid an information under 
s. 3 of The Cattle Stealing Prevention Act of 1853. 

On 7th September, 1869, Roche appeared at the Police Court, 
Dalby, to answer a complaint preferred against him by Goldsmith 
for the unlawful detention of a horse, alleged to be the property 
of the latter, when the summons was dismissed. On 16th 
November Roche was served with another summons, issued on 
the information of Goldsmith, for the restitution to him by Roche 
of the same horse, under s. 3 of 17 Vic, No. 3, and alleged that 
the horse in dispute had been stolen from Highfields, and found 
in Roche's possession, but did not charge Roche or any other 
person with the stealing. From the depositions it appeared that 
the horse in dispute was claimed by Roche and Goldsmith. The 
latter deposed to having purchased it in 1867 from one Ballard, 
Roche was not examined ; but one Wilkie deposed that he had 
bred the horse, and sold him to one Robinson, who subsequently 
delivered the horse to him for Roche, and that Robinson had 
given up the horse in consequence of being unable to meet a debt 
due by him to Roche. There was no evidence that the horse had 
been stolen at any time, though there was evidence of a belief 
that it had been stolen.- 

The grounds for the rule nisi were : — (1) That it appeared by 
the evidence that the defendant set up a bona fide claim of title. 
(2) That the title to property being in question, the justices had 



CRIMINAL REPORTS, 1860-1907. 



53 



no jurisdiction. (3) That the justices wrongfully refused to hear 
«vidence of a previous adjudication in respect of the same subject 
matter. (4) That there was no evidence of the stealing of the 
horse, the subject matter of the information. (5) That there was 
no evidence of the stealing of the horse within twelve months 
before the date of the information. (6) That there was no evi- 
dence of the stealing of the horse within twelve months before the 
•date of the information, or of the commencement of the proceed- 
ings, or of the order. (7) That the conviction or order was against 
the evidence. 

When the rule nisi was granted, leave was given to file additional 
affidavits by Mr. Ocock, and other affidavits, provided they be filed 
iour clear weeks before the day of return, including copies of 
preceedings in both cases. 

Affidavits were read, including those of Messrs. EHott and 
Wonderley, who denied that any evidence of the previous case 
heard at Dalby was tendered by Roche. 

Griffith moved the rule absolute. 

Handy, for the respondent, showed cause. 

The following authorities were cited : — R. v. Dodson (9 Ad. & 
Ell. 704) ; Ex parte Rusden ; Ex parte Preston (Wilkinson's 
Magistrate, pp. 97, 98) ; Ex parte Ivill [2 N.S.W. S.C.R. (L.), 92.] 

Cockle C.J. : It does not appear on the depositions that there 
was satisfactory evidence before the justices that the horse was 
stolen, and stolen within a year of the commencement of the 
preceedings, and on that ground alone the prohibition must be 
granted. It may be there was more evidence than appears on 
the face of the depositions, but it would be dangerous to allow 
depositions to be supplemented by affidavits of what took place 
before magistrates. The depositions alone must be our source of 
knowledge of what took place before the magistrates. With 
regard to the subject of a claim of right, we are not satisfied that 
the section under which ihe information was laid is a penal one. 
Moreover, satisfied or not, there being nothing in the depositions 
to show that this claim was tendered," the question raised is utterly 
immaterial, except so far as regards costs. I think this rule 
should be made absolute, but without costs. 

LuTWYCHE J. concurred. 

Solicitors for Applicant : Wilson and Bunion. 

Solicitor for Respondent : Doyle, agent for Hamilton. 



Goldsmith v. 

BOGHE. 



Cockle C.J. 



Lutwyehe J 



Lutwyche J. 



54 QUEENSLAND JUSTICE OF THE PEACE. 

[In Banco]. 

R. V. CASTLES & GRIFFITHS. 
[2 S.C.R. 147.— Note.— 29 Vic, No. 6, is repealed, see now ss. 398 (111.) and 402 of 
Criminal Code. As to joinder of counts, see now ss. 567, 568 ol Criminal 
Code. As to quashing indictment see now ss. 571 and 596 ol Criminal Code.} 

1871. Criminal Law — Information— Joinder of several felonies in different 

12th May. counts against two 'prisoners in one information — Larceny 

CockUG.J. Act of 1865 (29 Fie, No. 6), ss. 10, 11. 

In an infornuition against two prisoners a, coiint for feloniously stealing a cow 
had been joined with counts for feloniously killing a cow, with intent to steal 
the carcase and hide, and one prisoner was found guilty on the second count, but 
not guilty on the first and third, and the other prisoner was found guilty on the 
first, but not guilty on the second and third. 

The conviction was aflGrmed, the right being reserved for the prisoners to sue 
out a writ of error. 

An application should have been made to quash the information. 

Ceown Case Reseeved by the Judge of the MetropoUtan 
District Court. 

James Castles and Spencer Griffiths were tried on 22nd May at 
Warwick on an information containing three counts (1) that on the 
13th May last they did feloniously steal, take, and drive away one 
cow, the property of Frank Buttner ; (2) that they did feloniously 
kiU the cow with intent to steal the carcase ; (3) that they did 
feloniously kill the cow with intent to steal the hide. The 
prisoners pleaded not guilty, and were defended by their attorney. 
There was ample evidence to go to the jury against the prisoner 
Griffiths on the first, second, and third counts, and also against 
Castles on the second and third counts ; the judge ruling there 
was no evidence against him on the first. It appeared from 
the evidence that the cow in question was in possession of the 
bailee of the owner on 11th May, and it was found in the stock- 
yard of the prisoner early in the morning of 13th ; and the evidence 
adduced by the prisoner as to how it came into his possession 
was found by the jury to be false. About sunrise on the morning 
of the 13th the prisoners killed the cow, and before skinning 
and cutting up the carcase they were interrupted by the police. 
No objection was taken by the prisoner's attorney that they 
were charged in the first count with one felony, and in the second 
and third with another felony ; nor was any application made 
that the Crown Prosecutor should elect to proceed on one or other 
of the counts. The jury first brought in a verdict of not guilty 



CRIMINAL EEPORTS, 1860-1907. 



55 



against Castles on the first count, and guilty on the second and R- «^ Castles and 

lTR.Tli''F'TTHS 

third, and guilty against Griffiths on all counts. The judge then 

explained to the jury that there was no necessity to convict 
the prisoners on more than one count, and a verdict was then 
returned against Castles of " guilty " on the second, and " not 
guilty " on the first and third counts ; and of " guilty " against 
Grifiiths on the first, and " not guilty " on the second and thifd 
counts. No motion was made in arrest of judgment, and each 
prisoner was sentenced to three years' penal servitude. Before 
passing sentence, the Judge entertained some doubt, whether 
from the evidence adduced, the count for feloniously steaUng 
should have been joined with those for feloniously kilfing with 
intent to steal the carcase and hide. He also entertained a 
doubt, whether on the information, one prisoner could be found 
guilty on the first count, and not guilty on the second and third, 
and the other could be found guilty on the second, and not 
guilty on the first and third. The prisoners were undergoing 
sentence, and the opinion of the Court was requested on the 
questions (1) whether on the information the prisoners, or either 
of them, ought to have been convicted, and (2) whether the 
record was correct. 

Bramston A.G., for the Crown, in support of the conviction 
it was competent to join several descriptions of offences in the 
same indictment, and therefore on the first point the conviction 
must be maintained. R. v. Heywood, 33 L.J. (M.C.) 133 ; R. 
V. Moah, Dears 626 ; R. v. Trueman, 8 C. & P. 727 ; R. v. Mitchell, 
3 Cox C.C. 93. [LuTWYCHE J. mentioned R. v. Hinley, 2 M. & R. 
524 ; R. V. Kingston, 8 East 41 ; 9 R.R. 373 ; Young v. R., 3 T.R. 
98, 106.] On the second point the counts being joined, and the 
transactions which created the offence charged against each 
prisoner being the same, it was competent to find them guilty 
on different counts. R. v. Butterworth, R. & R. 520 ; R. v. 
Hempstead, R. & R. 344 ; R. v. Pulham, 9 C. & P. 280 ; R. v. 
Hayes, 2 M. & R. 155 ; 2 Hawkins, P.C. 622. 

Cockle C.J. : An appUcation should have been made to quash cookle C J, 
the information. The conviction must be affirmed. R. v. Hayes, 
2 M. & R. 155. We reserve the right to the prisoners to sue out a 
writ of error, if they think fit. 

LuTWYCHE J. concurred, and referred to R. v. Wheeler, 7 C. & mtwyohe J. 

P. 170. 

Conviction affirmed. 



56 QUEENSLAND JUSTICE OP THE PEACE. 

[In Banco.] 
R. V. LEVY. 

[2 S.C.R. 166.— Note.— 29 Vic, No. 6, s. 3, is repealed, see now ss. 391, 398 of 

Criminal Code.] 

1871. Larceny as a bailee — Bailment — ValvMble security — Promissory 

18th, 19th Dec. ^^^g — Passing of property — Larceny Act of 1865 (29 Vic, 

Cockle C.J. No. 6), s. 3. 

Lutioyche J. 

L. was convicted of larceny as a bailee of a promissory-note under the 

following circumstances : L. called at K.'s store and asked for an order for goods,, 
and K. gave him an order for goods to the value of £54 lOs. ; L. asked then K. for 
a promissory-note, as he was going to Brisbane that evening ; he said he put in . 
the goods much cheaper than before, and he wanted the note. K. said, " If I 
give you this promissory-note will you forward the goods at once ? " L. replied 
"I wiU." K. then said, -" Should you not do so I request you to forward the 
promissory-note at once." L. said, " Yes ; " then took out of a book a blank form 
of promissory-note, and wrote on it and handed it to K. to sign. K. signed it and 
gave it to L. ; the note was not stamped when handed to K., and there waa no 
evidence to show at what time it was stamped. K. swore that L.'s name was in 
the note when he signed it ; the goods were never forwarded by L., and subse- 
quently the note was passed at L.'s request to his credit by B., to whom prisoner 
had been previously indebted. K. wrote to L. for the return of the note, and 
received one somewhat similar from L. 

Hdd, that there was no reasonable evidence to go to the jury in support of 
the information, that there was no property in K. of the promissory-note, and 
that there was no bailment. 

Crown Case Reserved by Lutwyche J. 

The prisoner, Lawrence Levy, was tried before Mr. Justice 
Lutwyche on 5th December on a charge of larceny as a bailee, and 
the information alleged that he being the bailee of a certain 
valuable security — namely, a promissory-note for £54 lOs., and 
one piece of paper, the property of D. T. Keogh, of Ipswich, 
unlawfully and fraudulently converted it to his own use. The 
second count charged him with larceny of the said note. It 
appeared from the evidence that the prisoner, on the 28th June, 
called at Keogh's store, and asked him for an order for goods. 
Keogh gave him an order accordingly for goods to the value of 
£54 10s., and prisoner then asked him for a promissory-note, 
as he was going to Brisbane by the coach that evening. He said 
he had put in the goods much cheaper than before, and that 
he wanted the note. Keogh said he would do so, and the follow- 
ing conversation then took place : Keogh said " If I give you this 



CBIMINAL EEPOETS, 1860-1907. 57 

promissory-note, will you forward the goods at once ? " Prisoner ^ '^- 1'^^*- 
replied, " I will." Keogh then said, " Should you not do so I re- 
quest you to forward the promissory-note at once." The prisoner 
said " Yes," and then took out of a book a blank form of promis- 
sory-note, and wrote on it and handed it to Keogh to sign. Keogh 
signed it, and gave it to the prisoner. The note was not stamped 
when handed to Keogh by the prisoner, and there was no evidence 
to show at what time it was stamped. Keogh when asked if 
the name " Laurence Levy " was put in the note by the prisoner 
when he was in his (Keogh's) shop, said he could almost swear it 
was in the note when he signed it, and on re-examination said 
he had not the slightest doubt about it. The goods for which the 
promissory-note was given were never forwarded by prisoner, 
and on the 3rd July the note was passed at his request to his 
credit by Mr. E. Barnett, to whom the prisoner had been previ- 
ously indebted. On the 17th August Keogh wrote to prisoner to 
send him the note or the goods, and on the 18th the prisoner 
wrote to Keogh in reply, stating that he had done as requested. 
Enclosed in the prisoner's letter was a piece of paper, purporting 
to be a cancelled promissory-note, similar in all respects to that 
signed by Keogh, except that it was unstamped, that the date 
when due was wanting, that part where the signature should have 
been was torn oJEE, and that it bore only one endorsement, which 
was cancelled. The promissory-note signed by Keogh was 
dishonoured when it arrived at maturity. At the close of the 
case counsel for prisoner submitted that there was no case to go 
to the jiury, and urged that there was no evidence (1) of a bailment 
by Keogh to prisoner ; (2) of the note being available security 
within the meaning of the Act, 29 Vic, No. 6, s. 3 ; (3) of Keogh's 
property in the promissory-note ; (4) of the existence of any piece 
of paper as such after Keogh had signed the promissory-note ; 
(5) of the completeness of the instrument as a promissory-note 
when it left the hands of Keogh ; and (6) of the value of the piece 
of paper charged to have been stolen by the prisoner as a bailee. 
The case was left to the jury, who found the prisoner guilty of 
larceny as a bailee, and he was sentenced to imprisonment with 
hard labour for twelve months in Brisbane Gaol. The question 
reserved was — was there any evidence to go to the jury in sup- 
port of the conviction upon the information laid against the 
prisoner ? If the Court should be of the opinion that there was 
such evidence, then the conviction was to stand affirmed ; but 
if there was not such evidence, then the conviction was to be 
avoided, and the proper entry made on the record accordingly. 



68 QUEENSLAND JUSTICE OP THE PEACE. 

R. v. Levy Blake Q.C. and Hely, for the prisoner : There is no evidence 

of bailment ; the whole transaction does not constitute that which 
the law calls a bailment. Whether there was fraud or not on 
the part of the prisoner is not the question, but whether there 
was larceny as a bailee. To constitute a bailment there must be a 
deUvery of something of value to a bailee, either to be kept or 
to have that value increased by something to be done by the 
bailee, and, at a specified time, afterwards to re-dehver the 
thing in its original state, or with some improvement on the thing 
into which it had been converted to the bailor (Coggs v. Bernard, 
1 Smith's L.C. 177), and to constitute a bailment of the fifth kind, 
there must be a deUvery to carry or otherwise manage for a 
reward to be paid to the bailee. Nothing of any value passed 
from Keogh to the prisoner. This is not a case where the bill 
was delivered for discount, it was delivered for payment. It 
was not a bailment, because the thing delivered by Keogh to the 
prisoner was not to be re-delivered, nor was that into which 
it was to be converted, to be re-delivered ; see Cockburn C.J. 
{R. V. Hassall, L. & C. 62). Here the prisoner was not bound to 
return the specific coins he received. Does not the word, bailee, 
imply that the thing received is to be specifically returned ? 
A bailee must return either the article received, or something 
into which it has been converted in accordance with the terms 
of the bailment. What the prisoner had was never the property 
of Keogh [R. V. Phipoe, 2 Leach CO. 673, at page 679). " It is 
essential to larceny that the property charged to have been 
stolen should be of some value ; that the note in the present 
case did not, on the face of it, import either a general or a special 
property in the prosecutor ; and that it was so far from being 
of any the least value to him, that he had not even the property 
of the paper on which it was written ; for it appeared that both 
the paper and the ink were the property of Mrs. Phipoe, and the 
dehvery of it by her to him could not, under the circumstances of 
the case, be considered as vesting it in him." He had not to 
return the identical thing to Keogh, and if it was worthless it 
was never a valuable security. (29 Vic, No. 6, s. 3). It was 
merely Keogh's acknowledgement of indebtedness (Rex v. Hart, 
6 C. & P. 106). The note was primarily prepayment for goods 
which the prisoner was to send to Keogh, and if he did not send 
the goods, he was to get the note back, and as he did not send the 
goods it is a case of fraud, or at least a breach of contract. The 
note was not a valuable security until it passed into the hands 



CRIMINAL EEPORTS, 1860-1907. 59 

of Barnett. If the prisoner had not discounted it before it becatae ^ v^^vy. 
due, it would have been worthless ; because if he sued Keogh, a 
total failure of consideration could be pleaded. The position 
of the prisoner was more that of a trustee of the note than any- 
thing else, and certainly he was not a bailee. He entered into 
a collateral contract, and cases which tend to convert the ground 
of civil action into a criminal offence are to be followed with 
caution {Bex v. Shea, 7 Cox C.C. 147). It was a contract to 
deliver, not to re-deUver. Another point is this, being a chose-in- 
aotion it is not the subject of larceny, Beg v. Watts, Dea. 326 ; 
B. V. Morrison, 8 Cox C.C. 194. The conversation between the 
parties amounted to an agreement on the part of the prisoner 
to negotiate the note, and however the transaction is looked at 
it is impossible to make it appear as a bailment. The note or 
chattel was never the property of Keogh ; he never had it in his 
possession except to write upon it ; and as no property passed 
from Keogh to the prisoner there could be no bailment. All 
that could have passed was a future right to possession of the 
note. No property passed from Keogh ; the paper was not a 
valuable security {B. v. Lowrie, L.E.. 1, C.C.R. 61) ; and there 
was no bailment. 

Bramston A.O., for Crown. 

The Couet suggested that counsel for the Crown should confine 
himself to the question of property, as on that the whole case 
would turn. 

Bramston A.G. : The note was the property of Keogh as soon 
as it was handed to him by the prisoner, Evans v. Kymer (1 B. 
& Ad. 528). When prisoner handed over the note he parted 
with all the property in the note — deHvery on request is quite 
a sufficient consideration for transfer of the property. If it was 
not in his possession it never was a complete note, he never 
dehvered. If it was never in Keogh's possession then he could 
not have signed it. He had a right to demand the note again, 
Treuttel v. Barandon (8 Taunt. 100) ; B. v. Smith, 21 L.J. (M.C.) 
111). Keogh could have refused to part with it after he had 
signed it, and when prisoner handed the complete instrument 
to Keogh, he parted with the property. The document was 
received by the prisoner on the express condition that it was 
to be returned to him ; and that is sufficient to constitute a 
bailment. There was no necessity to show actual value, but the 



€0 



QUEENSLAND JUSTICE OF THE PEACE. 



R. V. Levy. 



Cockle C.J. 
Lutwyche J. 



moment the note passed from the prisoner it became a valuable 
security for the amount stated. The cases quoted by the other 
side do not apply. Keogh could have recovered on an action in 
trover, and if he had sufficient property in the document to sustain 
such an action, it cannot now be set up that he had no property 
in it. The property was in Keogh, it continued his property, 
and there was a bailment. In fact, the jury found that the 
bailment was complete, and therefore the conviction should 
stand affirmed. 

Blake Q.C., in reply, was not heard. 

The Coukt held that there was no reasonable evidence to go 
to the jury in support of the information. They were of the 
opinion that there was no property in Keogh of the promissory 
note, and that there was no bailment, and the conviction could 
not therefore be sustained. 

Conviction avoided. 

Solicitors for prisoner : Macpherson & Lyons. 



1871 

81% November, 

8th, 12th, aSnd 

December. 

Cockle C J. 
Lutwyche J. 



[In Banco]. 

In re COURT. 

[2 S.C.R. 171.— Note.— See now s. 20 ol Criminal Code.] 

Criminal Law — Felon — Escape — Re-arrest after expiration of 
period of sentence — Discharge on habeas corpus. 

A felon sentenced to five years' imprisonment escaped shortly afterwards, 
and after the expiration of the period of sentence was re-arrested, and committed 
to custody on a warrant of a magistrate. 

Held on » return to » writ of habeas corpus, that he was illegally in custody, 
but might be prosecuted for escaping. The prisoner was discharged. 

Rule nisi calling on the Sheriff to shew cause why a writ of 
habeas corpus should not issue, commanding him to have the 
prisoner, Charles Court, brought before the Court. The prisoner 
was sentenced on 14:th September, 1865, to two concurrent 
sentences of five years' imprisonment with hard labour, for 
horse stealing. He escaped from St. Helena on 16th August, 1866, 
and was again lodged in custody on 4th August, 1871, under a 
warrant of a magistrate, after the expiration of his term of im- 
prisonment. 



CRIMINAL REPORTS, 1860-1907. 



61 



Bramston A.G., for the Sheriff. A man cannot take advantage 
of his own wrong, the prisoner should not therefore be allowed to 
escape punishment of the felony of which he was convicted because 
he has evaded it. He should not be punished for the offence of 
escaping which is only a misdemeanour, instead of the felony. 
The rule should be discharged. 1 Russell, 581, 586; citing 2 
Hawkins, P.O., c. 19, s. 12 ; Wilkinson's Editn. (1866) of Plunkett, 
p. 281. 

Blake Q.C. and Griffith, for the prisoner. The term of sentence 
has expired. The sentence commenced from the date of con- 
viction. Coke, 52 a Pt. 3, Vol. III., 145. The proper course 
would be to indict the prisoner for escaping, and all the legal 
questions could then be decided. When the sentence com- 
menced to run it was similar to the running of the Statute of 
Limitations, which could not be stopped, and at the expiration 
of the period from the date of the conviction the sentence expired, 
and could not be prolonged. The only means by which a cumu- 
lative punishment can be carried is by an indictment for an 
escape. Bacon's Abridgt, 133 ; 2 Hawkins P.O., c. 18, s. 5 ; 
4 Vic, No. 10 (1 Bring, 588) ; Easton's case, 12 Ad. & El. 645. 

Griffith followed. The prisoner is now detained because he 
has escaped. A man's liabiUty to punishment can only be 
ascertained by a record. Groome v. Forrester, 5 M. & S. 316. 

C.A.V. 

22nd December, 1871. 

The Cottbt referred to 3 Wm. IV., No. 3, s. 20 ; 4 Vic, No. 10, 
s. 1 ; 18 Vic, No. 7, s. 2 ; 11 & 12 Vic, c. 42, s. 23 ; Form T. 1, 
(Bring, 582, 588, 590, 779, 793) ; Easton's Case (ante), and ordered 
the rule to be made absolute, the writ returnable at a later hour 
of the same day. 

The prisoner was then produced, and the return and writ read. 

Griffith moved for the discharge of the prisoner. 

Bramston A.G. did not claim to detain him as on a warrant of 
commitment, two sessions of oyer and terminer having passed, but 
claimed to detain him as of his original custody. 

Per Curiam. The prisoner cannot be detained upon the 
ground that he escaped before the expiration of his sentence, and 
which has since expired. He might be prosecuted for escaping if 
such a course is considered necessary. 

Prisoner discharged. 

Solicitor for prisoner : Bunton. 



In re Court. 



Cookie C.J. 
Lutwyohe J. 



62 



QUEENSLAND JUSTICE OF THE PEACE. 



1871. 
18th December. 

Cockle C.J. 
Lutwyche J. 



Cookie C.J. 



[In Banco.] 

REGINA V. PENN. 

[2 S.C.R. 177.] 

Criminal Law — Evidence — Deposition of absent witness — Evidence 
and Discovery Act of 1867 (31 Vic, No. 13), s. 67.* 

The depositions taken before justices of a medical witness, who was absent 
from the trial of a prisoner on account of having to go to Sydney for the benefit 
of his health, was held admissible as evidence. 

Ji.y. Wicker (18 Jur. 252) followed. 

Ceown Case Reserved. 

This was a special case reserved from the last sittings of the 
Supreme Court at Maryborough, when the prisoner was sentenced 
to twenty years' penal servitude for shooting James Cleary. 
The point reserved was whether under the provisions of The 
Evidence and Discovery Act of 1867 the depositions of one of the 
witnesses. Dr. Brown, should be admitted as evidence ; Brown, 
who was suffering from consumption, having previously left for 
Sydney for the benefit of his health. 

Bramston, A.G., for the Crown. The question is whether a 
witness, who leaves town for the benefit of his health, is too iU to 
be able to travel ; if Dr. Brown had resided anywhere else the 
depositions must have been received. Section 67 of the Act pro- 
vides for cases where the " witness shall be so iU as not to be able 
to travel," which means, so ill as not to be able reasonably to 
attend. Archbold, Edn., 1867, p. 230 ; B. v. Biley (3 C. & K. 
116) ; B. V. Coclcburn, Dears & B., 203, 26 L.J. (M.C.), 139; 
Boscoe, 7th Edn., 66 ; B. v. Wicker, 18 Jur., 252 ; Taylor, p. 406. 

No one appeared on behalf of the prisoner. 



Cockle C.J. 
be affirmed. 



I am of the opinion that the conviction should 



Lutwyche J. LuTWYCHE J. : I am of the same opinion on the authority of 

B. V. Wicker. 

Conviction affirmed. 



* Compare Justices Act (50 Vic, No. 17), s. 111. 



CRIMINAL REPORTS, 1860-1907. 



63 



[In Banco.] 
R. V. COATH. 

[2 S.C.R. 178.— Note.— See now ss. 354 and 355 of Criminal Code and Pacific 
Islanders Protection Act, 1872 (35 and 36 Vic, No. 19), s. 9.] 

Criminal Law — Kidnapping — Slavery. 

The ship Jason, from Queensland, visited certain islands in the South Seas, 
inhabitants from which came out to trade, and were forcibly seized, detained, 
and brought to Maryborough, where they were set free. 

Hdd (afBrming Ltjtwyche J.) that as the islanders had been detained and 
brought to Queensland in a British ship against their wills, the offence of kid- 
napping had taken place, and the Court had jurisdiction to try the persons charged. 

The history of slavery reviewed. 

Cbowk Case Reserved by Lutwyche J. on the trial of 
the prisoner at the last criminal sittings of the Supreme Court 
at Brisbane. 

The prisoner was charged in the first count of the indictment 
with the abduction and kidnapping of certain South Sea Islanders 
in the month of January, 1871 ; the second count charged him 
with an assault upon the said islanders ; the third with abduction 
and kidnapping of nine other islanders in February, 1871 ; and 
the fourth with an assault upon the same islanders. He was 
found guilty on the third count, and not guilty on the other 
counts, and was sentenced to five years' imprisonment in Birisbane 
Gaol, and to pay a penalty of £50, and to remain imprisoned 
until such fine be paid. In summing up the Judge directed the 
jury that if they were satisfied that at the time of the commission 
of the alleged offence charged in the third count, the Jason was 
a British ship, and was sailing on the sea, she was sailing on the 
high seas, and that the offence was triable here. He also 
directed that if they were satisfied that the nine islanders, or 
any of them, were brought on board or detained there against 
their wiU, and carried away to another place, the charge of kid- 
napping would be proved. Mr. Lilley, the defendant's counsel, 
objected to the direction on both of these points, and the following 
questions were accordingly reserved for the decision of the Court : 
(1) " Was I right in directing the jury that if the Jason was a 
British ship, and on the sea, she was saiUng on the high seas, 
and that the subject matter of the inquiry was within the juris- 
diction of the Court ? " (2) " Was I right in directing the 
jury that if they were satisfied that the nine islanders, or any 



1871. 
18th December. 

Cockle G.-T. 
Lutwyche J. 



64 QUEENSLAND JUSTICE OF THE PEACE. 

K. V. CoATH. of them, were brought on board the Jason, or detained there 
against their will, and carried away to another place, the charge 
of kidnapping would be made out ? " 

Lilley Q.C. and Blake Q.C., for the prisoner. 

Bramston A.G. for the Crown. 

Lilley Q.C. I ask that the case as stated be amended by stating 
that the islanders when they were put on board the Jason were 
treated in the same way as the other islanders who were on board, 
and that they were landed free at Maryborough. 

The Cottet. We refuse to allow the amendment, but consent 
to the case being argued as if the facts referred to were set out 
in the case. 

Bramston A.G. mentioned R. v. Anderson, L.R. 1, C.C.R. 161. 

Lilley Q.C. I do not think that the point raised by the first 
question is tenable, and I will therefore address myself to the 
second point. The question might be shortly stated thus : 
" Did the case disclose any offence known to the English law ? " 
I contend it does not, even admitting the facts to have been 
proved. The question substantially is : " What is the offence 
of kidnapping as known to the English law ? " Can it be com- 
mitted on a savage or barbarous people captured and brought 
within the protection of British law, and landed free at Mary- 
borough ? (Stephens' Comm., 4th Edn., 163.) There is no 
precedent of any kind for this conviction. The offence of kid- 
napping only arises where persons are taken from under the 
protection of the law of England, where the Sovereign is deprived 
of a subject, or where there is a concealment of a person in any 
part of the British dominions, so as to deprive the person of the 
protection of the laws (B. v. Lord Grey, 2 Shower, 218 ; 1 RusseU, 
962). Under the Roman law it was no offence to steal or capture 
barbarous people, and the offence only existed where a freeman, 
his wife, or child, was seized or held as a slave. It is no offence 
to go to islands inhabited by a savage and barbarous people, 
and to bring these people within the protection of the Enghsh 
law. The only quaHfication which exists in The Slave Acts is that 
such persons should not be captured or seized for the purposes 
of being used as slaves. This might be morally wrong, and I 
am not going to defend such transactions ; but the question is 
whether there is an offence against the law. Until The Slave 



CRIMINAL REPORTS, 1860-1907. 65 

Acta inferior races could be enslaved. Slavery is not piracy ^- '• '^o*''^- 
by the law of nations, but on the contrary it is lawful, and is 
only made piracy by the municipal laws of England. The piracy 
created by The Slave Acts is the carrying away of these men for 
the purpose of using them as slaves. The carrying away itself 
does not constitute the offence, and there is no case in the books to 
show that the seizure of barbarians and bringing them under 
the protection of the law is an offence against the law. The case 
of Turbett v. Dassigney, 2 Shower, 221, was a pure case of kid- 
napping, because the person was taken from under the protection 
of the law. The moment these islanders touched the deck of 
an EngUsh vessel they were free, and had a right to habeas corpus. 
They were landed at Maryborough and were allowed to land 
free : but it was possible that if they had been landed at Fiji, 
which was not in the British dominions, the offence of kidnapping 
would have occured ; because they would then be removed from 
the protection of the law which they were entitled to by virtue 
of being on board an English vessel. It is contrary to fact to state 
that slavery was unknown to England, and the case of " The 
Slave Grace," 2 Hagg, 94, showed that residence in England did 
not make a slave absolutely free ; for, on returning to the place 
from whence they came, they again became slaves. There is 
clearly no kidnapping in this case, although there might have 
been false imprisonment for a short time, for which it was com- 
petent for the prisoner to have been punished. I therefore submit 
the direction was wrong, and the conviction must be set aside. 
(The following authorities were also cited : Dred Scott v. Sanford, 
Howard's 19 U.S.R., 393 ; Somerset's Case, 20 S.T., 1-82 ; The 
Penal Code of New York, 93, Austin, Vol. II., 242 ; Santos v. 
Illidge, 8 C.B. (N.S.), 861 ; Reg v. Serva, 1 Den., C.C. 104 ; 
The Daphne, 10 S.C.R. (L.) N.S.W., 37 ; 5 Geo. IV., C. 113). 

Bramston A.G. The direction of the learned Judge was per- 
fectly correct. There is no doubt the islanders were taken on 
board against their will, and conveyed to Maryborough against 
their will. It has been argued that this does not constitute 
kidnapping, because it is not possible to kidnap a person of a 
savage race if he is brought within the protection of the law; 
but the effect of that argument is that a man is brought within 
the protection of the law, and still that protection is refused by 
preventing him from punishing the man who has infringed his 
personal liberty. Throughout the whole of the argument of the 



66 



QUEENSLAND JUSTICE OF THE PEACE. 



B. ■!;. COATH. 



Ccckle C.J. 



other side there is a fallacy which undermines the whole.- The 
learned counsel has confused the efEect of the law with the law 
itself. The illegality of man-stealing is not in the removal 
of a man from England, but in the violation of that personal 
liberty which the law of England recognises in every man (Stephens 
Comm., 140 ; iJoscoe, 4th Edn., 568). If the right of the personal 
liberty of these men was once touched, it cannot matter whether 
they were brought to Queensland or elsewhere ; so long as it 
was against their will, it was kidnapping. With regard to de- 
priving the Sovereign of a subject, and taking a person from 
the protection of the law, in these cases we have a condition which 
necessarily attests to the illegal acts done, but it does not show 
why the act is illegal. It tfan never be held to be the law of 
England that the protection of the law is meted in proportion 
to the civilization of a people. The savage has as much right 
to protection under this law as the most highly educated. The 
rights of these people to the protection of the law attached as 
soon as they came on board the Jason ; they were then entitled 
to the habeas corpus, *nd their right to demand the punishment 
of those who had seized them also accrued. These people can 
scarcely be called free, because they are unable to return from 
whence they came, and they can get no redress. They are entitled 
to enjoy the manners and customs and laws of their own country, 
and their forcible removal was kidnapping. The Court should 
remember that it was not the offence committed against these 
people alone that it has to consider. It has also to consider the 
serious injury done to the whole of the public by this outrage 
of the law. It is the public peace that has been injured, and the 
public has a right to demand punishment even in a greater 
degree than the persons directly injured. In Lor^ Grey's case 
(supra) it was the relations of the lady whom he concealed, 
and the public, who demanded that he should be punished, and 
not the lady herself. I therefore maintain that the conviction 
must be maintained. 

Lilley Q.G. replied. 

Cockle C.J. : Although I cannot say I was convinced, I was 
very much impressed, by the very learned argument which Mr. 
Lilley advanced, and which he, I crave leave to say, pressed 
properly on the Court, because the Court is never more in danger 
of going wrong than when it is disposed to be likely to decide 
upon emotional grounds ; and this is a case which ought to 



CRIMINAL REPORTS, 1860-1907. 



67 



be decided solely on legal grounds. However bad the law may 
be, the Court best does its duty by rigidly enforcing it, and 
thus enabling its abuses to be perceived, and leaving it to the 
Legislature to correct such abuses, and therefore as far as I am 
concerned, I do not think any emotional ground weighs with me 
at all in dealing with this matter ; but I do give considerable 
scope to the argument from public policy which has been adverted 
to on behalf of the Crown. We have no right, certainly in the 
exercise of an arbitrary discretion, to say that this is a mis- 
demeanour which the law does not say is a misdemeanour. We 
should be careful not to do that ; but we may fairly say, and 
not for any rhetorical reason at all, what would be the conse- 
quences of disturbing this conviction, and of saying that the 
facts which constitute the evidence on which the conviction was 
founded do not constitute a misdemeanour ? We may fairly 
and temperately look at these consequences. It would appear 
that men — whether savage or civilized perhaps we are hardly 
able to say, for there are degrees of civilization as well as of 
everything else, but at any rate civilised enough to traffic, to 
come in the way of the ship with the intention of trading, as was 
•evidenced by their holding up a pig — these men are, after a 
■display of force, thrust into a boat, and so induced to go on board 
ship, and I cannot help thinking that some disregard for the 
lives of these men was shown, for one poor fellow jumped over- 
board and swam as he no doubt thought for his life. He was 
brought back in an exhausted state, and if he had not been taken 
on board it is quite possible he might have been drowned before 
reaching land. Therefore, taking all the circumstances, we say 
here is a display of something like treachery; a seizing of persons 
who came to trade, and a disregard shown to life by attending 
rather to the capture of those who were going on board than to 
the poor fellow who ventured on a long swim for his life. Then 
there is the example shown by these savages — one, an old man, 
weeping perhaps for the thoughts of those whom he had on shore, 
and who were weeping for him, and not only that, but after he 
and the others were thrust down the hold, their yams and pigs 
were appropriated, and their canoe used for firewood. I do 
not use this for any rhetorical effect. It is obvious that any 
Court would, if it could, avoid it ; but we must consider whether 
one subject of Her Majesty is at liberty to fit out a vessel to sail 
amongst these apparently savage and guideless islanders, and 
seize them and appropriate their property a appears to have been 



B. V. COATH. 

Cookie C.J. 



68 QUEENSLAND JUSTICE OF THE PEACE. 

R. V. CoATH. (jone in this case. It is the more necessary that we should fix 
Cpclile C.J. our attention on this, because it should be noticed that with the 
improved manners and greater knowledge of succeeding ages, 
the maxims of ptevious ages are deviated from. We see with 
regard to the English law of evidence, in the case of Omichund 
V. Barker (WiUes 538, 1 Atk. 21) in which for the first time, it 
was recognised that difference of religion made no difference so- 
far as giving testimony was concerned — when the great authority 
of Lord Coke was cited to show that the evidence of a Jew ought 
not to be admitted, Chief Justice WiUes said that the reasons 
given, though coming from a great man, were not such as he 
would follow, and he reversed, or rather did not act on the 
decision of Lord Coke, but took the more correct view — the view 
recognised by succeeding ages — that such narrow reasons did 
not suffice to guide the law of evidence. Therefore we may 
take it for granted that with the increasing culture and humanity,, 
and toleration of ages, some of the old maxims should be moder- 
ated. Though it is a difficult question to say what the law 
may have been; and whether there is any authority to show 
that the common law would have regarded this as anything^ 
but a grave outrage, we know that a great many deeds of violence 
were perpetrated in America — take, for instance, in Spanish 
America, where such deeds were done, not with the sanction of 
the Spanish Government, but against their remonstrances, and 
such forces as the then King could bring to bear were found 
insufficient to remedy the abuses. We have no means of knowing 
how far this institution of slavery was the result of law or perpetu- 
ation by custom of what was originally a cruel abuse. There is- 
no doubt, let it arise how it will, that colonial slavery does appear 
to have been recognised in the English Courts ; but it must b& 
remembered that these Courts did not make the law, but that 
they were recognising a law made in some other places ; and I 
confess that when it comes to the question of deciding upon the 
rights of a man to his liberty, we are called upon to narrowly 
scrutinise the old doctrines. Can it be said that because the 
Courts recognised slavery in the British dominions that they 
would recognise any sort of slavery ; that they would allow 
an unfortunate Frenchman to be seized by any person who chose 
to call him his slave ; and if such a person asked the Court to 
recognise him as his slave, there is Uttle doubt that the Court 
would refuse. I believe that any Court which is called upon to 
restrain the liberty of a man on the ground of being a slave would 



CRIMINAL REPORTS, 1860-1907. 69 

fully examine the law and the circumstances to ascertain how ^- ' "■ C"^ ™- 
far the ground was good. Even among the sterner and wealthier Cockle O.J. 
nations of antiquity they would go past the grounds on which a 
man was alleged to be a slave if any such question did arise, 
and it would have to be shown how far such slavery arose ; and, 
as far as I am aware, it would be the result of capture in war, 
or for some crime a man might be adjudged to slavery, or for 
debt ; or again, in some of those parts of the world parental 
authority might empower a father to make his son a slave, or 
there might be a contract by which a man might become a slave, 
or a custom — such, as I hope, sprung up in the colonies in spite 
of the Common Law of England. There may be so many origins 
to restraining the liberty of human beings, but to which of these 
sources could the right of anyone be traced to sail out of the port 
of this colony, and act as these persons have done to these people 
of the Southern Ocean ? The state of the law might have escaped 
notice at home ; but it ought not to escape notice here. In 
England these matters were comparatively unimportant. The 
persons whose rights were torn away were for the most part from 
the coast of Africa, a long hne of trade across portions of the 
ocean through which no man went except engaged in the nefarious 
and cruel traffic. Ordinary persons at home were not likely to 
be depending on barbarous treaties or the like ; but here it is a 
very different question. This trade is carried on across the high- 
way through which much of the commerce of these parts passes, 
and along which, as time rolls on, probably more of it ■will pass, 
and in which are islands inhabited by tribes, or nations — or call 
them what you will — of the very class of persons brought under 
our notice in this case ; and if once amongst these nations an 
opinion should get abroad that our law proceeded upon principles 
so inhuman that their rights could be violated with impunity by 
any man who may choose to sally forth to outrage them, I say that 
the safety of commerce itself and the blessings it maintains — the 
safety of our fellow-subjects and fellow-colonists — would be 
endangered ; and I think that in saying this I am only drawing 
an inference that the Common Law itself would draw. It is not 
on any narrow or technical principle that I base my opinion 
that this conviction should be sustained. I think that the cases 
decided upon the point of slavery are valuable and important, 
but still in this particular case I cannot help thinking that there 
is a strong bias, not, I hope, affecting the Court consciously, 
but we must remember that different views may be entertained. 



70 



QUEENSLAND JUSTICE OF THE PEACE. 



B. .;. CoATH. and we must expect to find different views prevailing there. 

SooklTc.J. Taking a general view of the case, we cannot do otherwise than 
affirm the conviction. I had some doubts as to the meaning of 
kidnapping, but Mr. Justice Lutwyche threw out an observation 
which removed the difficulty. Of course, we decide the case 
simply as it comes before us, and therefore the conviction must 
stand. 

Lutwyehe J. LtTTWYCHE J. : I adhere to my ruling at the trial, and I think 

the direction I gave the jury was right. I told them that if they 
were satisfied that these nine islanders, or any of them, had been 
taken on board and carried away to another place against their 
will, the charge of kidnapping had been made out. One form 
of kidnapping is steaUng and carrying away a man — not any 
British subject, not any civilised man, but any human being — 
man, woman, or child, and if so, the Common Law of England 
will undoubtedly apply to the offence of which the defendant 
has been found guilty, as kidnapping. It has been said that 
there are no instances of a case of this kind having been brought 
before the English Courts, and the cases referred to are principally 
cases of abduction, which is a taking or carrying away, sometimes 
with, and sometimes against, the will of the party, and in these 
cases the concealment of the person was the main ingredient of 
the charge. But I think that although no instance has been 
cited, and perhaps none can be found, in which a charge of this 
kind has been made before the English Courts, yet that does not 
affect the Common Law, which says to the subjects of England 
you shall not, at your peril of fine and imprisonment, take, 
steal, or carry away any human being. And yet men are found 
to sail forth from a port of this colony, and seize and carry away 
certain persons found on the high seas — they are called islanders, 
and whether they are civilised or not matters not. They have 
a right to Uberty, which is inherent in all human beings, although 
at times that inherent right has been taken away by force. But 
we have nothing to do with that ; we must assume that at the 
time these men were taken they were freemen, and that being 
so it is an offence on the high seas by persons subject to the juris- 
diction of the British Courts. It is an offence against the public 
— a serious offence against the public in this case — for, as has 
been pointed out, the consequence of our holding that this was 
not such an offence as contemplated by the Common Law, would 
be a lasting prejudice to the position of England, and the welfare 
of the colonies which form her empire. If we were to hold that 



CEIMINAL EEPOETS, 1860-1907. 



71 



men sailing from these ports were able to make these excursions, 
and treat persons whom they find on the high seas in the same 
way as these islanders, we would have a league of nations formed 
against Great Britain and her dependencies ; and it would be 
impossible, if we were to maintain such a principle, to uphold 
the position which Great Britain at this time happily occupies. 
I will not say I regret, because I think justice has been done ; 
but I may say that I should not have been surprised if the heavier 
charges which would have been attended by graver consequences, 
had been brought against the defendant in this case. There 
can be no doubt upon the facts set out, that robbery and depre- 
dation on the high seas were committed, and robbery and depre- 
dation amount to piracy. The defendant may, therefore, think 
himself fortunate that he was tried on the lighter charge, and 
sentenced to only five years' imprisonment and a fine of £50, 
instead of being tried for the graver offence, for which he might 
have been sentenced to penal servitude for Ufe. I have nothing 
further to add. I have only to repeat that the direction was 
right, and I think the conviction ought to be affirmed. 

Conviction affirmed. 
Solicitor for defendant : R. K. Macnish. 



B. V. COATH. 

Lutwyche J. 



[In Banco.] 
EMMERSON v. CLARKE.* 
[3 S.C.R. 76. — Note. — Re Haughton, cited in toot note, was also reported in 5 S.C.R. 
53, and is reprinted herein, post. See also Millis v. Kiefer (10 Q.L.J. 142, 
post), and CUSord v. Wliite (4 Q.J.P.R. 132, 1910, St. R. Qd. 364).] 

Cattle Stealing Prevention Act (17 Vic, No. 3), s. 61 — User^ 
Tresspass — Prohibition — Penalty — Objection not taken in Court 
below — Costs. 
To constitute an " user " under s. 6 of 17 Vic, No. 3, there must be an employ- 
ment of the animal taken for the purposes of profit, convenience, or pleasure. The 
intent is immaterial. A person might be brought within the provisions of the Act 
without evidence of » " taking." 

In re Bowman (6 S.C.R. (N.S.W.) 15), questioned. 

Application on behalf of Daniel Ralph Emmerson to make 
absolute a rule nisi calhng upon Francis Clarke, Frederick William 



1872. 

9th, ISth 
September. 

Cockle a.J 
Lutwyche J. 



* Followed in Be Haughton (1 Q.L.R. (Pt. II.) p. 53), 
t The Criminal Code (63 Vic, No. 9), s. 445 



72 QUEENSLAND JUSTICE OF THE PEACE. 

Emmeeson v. Myles, William Clarke, and Frederick Kilner, justices, and Norman 
Claeke. shadwell Campbell Berry, informant, to show cause why a prohibi- 
tion should not issue restraining further proceedings on an order 
made by the said justices at the Police Court, Bowen, convicting 
the appellant of unlawfully using cattle contrary to the pro- 
visions of s. 6 of the Act 17 Vic, No. 3, and why Berry should 
not pay the costs occasioned by the proceedings on the grounds 
(1) that there was no evidence of any using of the cattle within 
the meaning of The Cattle Stealing Prevention Act ; and (2), that 
certain of the justices who adjudicated in the matter were not 
present during the whole of the trial. From the affidavits in 
support of the rule it appeared that Daniel Ralph Emmerson, 
the proprietor of Proserpine run, was summoned on the informa- 
tion of Berry, the superintendent of Crystal Brook run, which 
adjoins Proserpine, under s. 6 of 17 Vic, No. 3, for taking and using 
26 head of cattle. Part of the evidence — the examination in 
chief — of Berry was heard before Francis Clarke, R. S. Warry, 
and F. W. Myles on the morning of 9th of April, and at 1 o'clock 
an adjournment took place for an hour. When the Court resumed, 
Warry did not sit again in the case, but Wilham Clarke and 
Frederick Kilner took seats on the Bench, and although the 
evidence taken before the adjournment was not re-sworn or 
taken afresh, they adjudicated in the case. From the evidence 
adduced at the hearing it appeared that, on the 31st of March 
previous. Berry found in the yards of Crystal Brook some cattle 
which were claimed by William Emmerson, son of the defendant, 
and 26 head belonging to Mr. Holt, the proprietor of Crystal 
Brook. The cattle claimed by William Emmerson — about 25 
head — had been placed there by Berry's permission. About 
sundown the same day the defendant, D. R. Emmerson, came 
to the yards with two men and said he had tracked some cattle, 
which had been stolen, from Proserpine to Crystal Brook yard, 
and that the animals in the yard were the same. Berry said 
some of the cattle were his, and some were claimed by Wilham 
Emmerson, but the defendant claimed them as having been stolen 
from his run. After some conversation Berry told him to draft 
out the cattle he claimed, but the defendant said it was too dark 
to draft then, and he would take the lot. He then threw down the 
rails and told his men to drive the cattle out. Berry called upon all 
present to witness that he was taking the cattle forcibly. Defend- 
ant drove the cattle away, and as he did so he said, " I will be 
responsible to Mr. Holt for all cattle of his that are here." Berry 



CRIMINAL REPORTS, 1860-1907. 73 

replied that he had committed an illegal act, and would take Bmmekson v. 

Clarke 
proceedings against him. On the following day Berry saw some 

of the cattle at Proserpine, and defendant asked him to take 
possession of them, which he refused to do. On the same day 
he received the following letter from the defendant : — " There 
has been some cattle illegally driven off Proserpine run, and as 
soon as I heard of it I got my horses and tracked them to Crystal 
Brook yards, where I took possession of them, and brought them 
to Proserpine. The following morning I found there was some 
of your weaners with them, and by your man's assistance we 
drafted them, and I now send them back to Crystal Brook. In 
coming up to Proserpine last night we lost some owing to the 
darkness. I have sent my men to look for them. I shall be 
obUged if you will assist them, and let me know if there is any 
more of our cattle on Crystal Brook run. P.S. — I shall be muster- 
ing several more days, and request you to send a man up to assist 
collecting the remainder of your cattle." Berry subsequently 
laid an information against defendant, and obtained a warrant 
to search for the cattle belonging to Mr. Holt. He found 14 
head and a calf, but not the others. There was a dispute going on 
about agistment between the defendant and William Emmerson, 
who drove the cattle he claimed and some of Holt's from Proserpine 
into Crystal Brook yards. He had no permission to remove the 
cattle from Proserpine. It appeared from the evidence of Daniel 
Emmerson that he and defendant and another man drove the 
cattle claimed by William Emmerson out of th? yard, and the 
others accompanied them, and were not taken voluntarily or 
intentionally. It was too late to draft them, and they could 
not help the others following. The amount due for agistment 
had not been paid when William Emmerson took the cattle off 
Proserpine. The Bench found the defendant guilty, and inflicted 
a penalty of £3 per head — amounting to £78 — and £11 costs and 
expenses. 

Affidavits in reply were read, from which it appeared that when 
Wm. Clarke and Frederick Kilner took their seats on the Bench 
the evidence of Berry, which had been previously taken, was 
read ; and after his cross-examination the whole of his evidence 
was read over, and he stated that it was correct. It was also 
stated that the Justices were unanimous in their decision. 

Lilley Q.C. and McDevitt, for the appellant, moved the rule 
absolute. 

Blake Q.C, for the informant. The conviction was right.. 



74 



QUEENSLAND JUSTICE OF THE PEACE. 



Emmebson v. 
Clabke 



Lutwyche J. 



The defendant went after the cattle for the purpose of retaking 
them because the agistment had not been paid ; but he had no 
right to do, because a person could not have a lien on cattle for 
agistment. Even as far as William Emmerson's cattle were 
concerned, defendant had no right to interfere, because they were 
in possession of the owner. (Plunkett, p. 67, note (a) ; In re 
Bowman, 6 S.C.R. (N.S.W.) 15 ; B. v. Frew, 7 S.C.R. (N.S.W.) 
111). As to the proceedings before the Magistrates, it was 
sufficient if the whole of the evidence was heard before two justices, 

Bramston A.O. : The magistrates were unanimous. Courts are 
unwilhng to inquire into the votes of justices. (Penny v. Slade, 5 
Bing. N.C. 469, 8 L.J.C.P. 221 ; B. v. J J. of Leicestershire, 1 M. & S, 
442, 14 R.R. 494). The defendant's conduct closely approached 
a breach of the peace. 

Lilley Q.C. : According to the Act, if therewas a taking without 
a using, there could not be a conviction, There must also be a 
dishonest object or purpose. The cattle might be taken by 
accident, unintentionally, or under a claim of right. 

C.A.V. 

13th September, 1872. 

Lutwyche J. : The rule nisi was moved for on two grounds. 
First, that there was no evidence of a user by Emmerson of the 
Crystal Brook cattle ; and, secondly, that the case was not heard 
whoUy and throughout by all the justices who signed the con- 
viction. With regard to the second point, we are both of opinion 
that it cannot be sustained ; first, because there were two justices 
who heard the case from end to end, and according to s. 6 of 
2''h,e Cattle Stealing Prevention Act a conviction may be by any 
two justices of the peace in Petty Sessions assembled ; and, 
secondly, because if the objection that the whole case was not 
heard by all the justices was not taken at the time, it appears 
from authority that, although the witness was not sworn in the 
presence of the other justices — in this case the three other justices 
— nevertheless, his evidence would not be open to rejection. 
It appears that when a witness is not sworn on a trial, and the 
objection has not been taken at the trial, that the person against 
whom the verdict is found, and against whose interest the evidence 
is taken, is not entitled on that ground to a new trial ; and we 
think therefore that, on both of these grounds, that the second 
objection cannot prevail. With regard to the first objection, 
I am of opinion that there was no reasonable evidence from which 



CEIMINAL REPORTS, 1860-1907. 



75 



the justices who heard the case, and who convicted Emmerson, 
could infer that there had been a user by Emmerson of the 
Crystal Brook cattle. The Act under which the charge was 
brought against Emmerson, like most Acts that were passed 
in the earlier Legislative days of the parent colony, is difficult 
to construe according to the ordinary rules of construction which 
are applied to legislative enactments ; but in the present case 
I think we may see our way very clearly to the conclusion that 
Emmerson has not brought himself within the penal provisions 
of s. 6 of the Act. The penalty under that section being only for 
using it is clear there must be evidence of user. Now, it may be a 
matter of some difficulty to say what is evidence of user, but in 
most cases referred to by the Act there would be evidence from 
which a user might be inferred. In the first place the Act says : 
" If any person shall take, use, or in any manner work any cattle ; " 
and it is clear that " cattle," as described in the second section, 
could not be worked without being used, and the penalty in the 
sixth section is confined to cattle that are used. The second 
section, in defining the meaning of " cattle," says it shall extend 
to and include horses, mares, filUes, foals, geldings, colts, bulls, 
buUocks, cows, heifers, steers, calves, sheep, lambs, goats, pigs, 
mules, and asses. Many of these are animals of draught or burden, 
and some, which are not animals of draught or burden kiay, never- 
theless, be used within the meaning of the sixth section. Sheep, 
for instance, might be shorn, and in that case it would be a user. 
It might require some ingenuity to determine how pigs might 
be worked or used (unless actually appropriated) , though they 
might be taken. But I think, in respect to all the other animals, 
there might be a user, though not perhaps a working, as in the case 
of sheep or milch cows, which might be used by being milked. 
The question then arises : Was there any evidence given before 
the justices from which they could infer that there was a user of 
Crystal Brook cattle ? It appears from the evidence that these 
cattle, together with some twenty-six head which had been pre- 
viously on Proserpine run, had been tracked from that run to Mr. 
Holt's yard at Crystal Brook, and that Emmerson went to that 
yard at night, and under a claim of right to the Proserpine cattle, 
ordered his men to let down the rails and drive the Proserpine 
and Crystal Brook cattle away. That is all that appears from the 
evidence given on behalf of the prosecution, and I confine myself 
to that, because we do not sit here to try the case over again, 
or to determine whether the justices might not, if they had heard 



Emmerson v. 
Clakke. 

Latwyche J. 



76 



QUEENSLAND JUSTICE OP THE PEACE. 



Emmebson v. 
Clare;e:. 

Lutwyohe J. 



the whole of the evidence, have safely arrived at a different 
conclusion. It is enough if we can gather from any of the evi- 
dence that there was sufficient to warrant the justices in arriving 
at the conclusion that the cattle had been used. Now, in the case 
referred to by the learned Attorney-General and Mr. Blake, the 
Supreme Court of New South Wales upheld the direction of Judge 
Meymott that if the cattle were driven away without the owner's 
consent, even if only for the purpose of inducing other cattle 
to go quietly, that would be a user ; and I am far from saying 
that there might not be cases in which driving away a stranger's 
cattle for the purpose of enabling others to be driven quietly, 
or that cases would not arise in which such a taking would be 
a user. According to my construction of the Act, to constitute 
a user there must be an employment of the animal taken for the 
purposes of profit, convenience, or pleasure. Intent, I take to 
be immaterial. It does not seem to me to be at all within the fair 
construction of the Act that there should be any intention, honest, 
or dishonest. The act is sufficient if it be for the purpose of ob- 
taining profit, or of certain convenience to the person taking the 
animal, or for his own pleasure or amusement. Bilt it does 
not seem to me in the present case Emmerson took the Crystal 
Brook cattle either for his profit, or his convenience, or his pleasure. 
It was too dark, as the evidence shows, to draft the cattle, 
and he was anxious to get his own cattle, or those he claimed 
as his own, home as soon as he could. Now, they were Proserpine 
cattle, and certainly they would not require the assistance of the 
Crystal Brook cattle to enable them to find their way back to the 
run from which they had been taken. There could have been no 
inducement operating on the mind of Emmerson to make him 
take the Crystal Brook cattle, and it appears that at the time 
he offered to be responsible for all Mr. Holt's cattle that were 
there. So far, then, from being a source of profit or convenience, 
or pleasure to him, he would have been much better without the 
Crystal Brook cattle than with them. He took no particular 
pains to keep them together, for eight of them were missed on the 
road before arriving at Proserpine Station, and it seems to me 
that the driving away of the Crystal Brook cattle was incidental 
only to his desire to re-obtain possession of the cattle he claimed 
as his own property. I think, therefore, there was no reasonable 
evidence from which the justices could come to the conclusion 
they did come to. I observe that in Bowman's Case (6 S.C.R. 
(N.S.W.) 16) the Court seemed to have thought that in order to 



OEIMINAL REPORTS, 1860-1907. 



77 



bring a person within the provisions of the sixth section, there 
must be a taking as well as a using. A cow, in that particular 
instance, was found on the run, and was only milked, and they 
considered the conviction ought not to have been made, but I 
confess that if a case of that kind should come before this court, 
I should pause before I came to the same conclusion. I think 
the proposition is laid down much too widely. I think a person 
might be brought within the provisions of the Act without a 
taking at all ; for instances have occurred, and may occur again, 
where the services of a valuable entire or bull have been obtained 
without taking the animal, simply by taking down a portion of the 
fence of the paddock in which they were closed, and letting in 
cows or mares — a very serious offence, and one which I hope will 
be severely punished when it is proved. I think in that case, 
without a taking, such a using would be within the meaning of 
the section. Without going further at present — because it may 
be expedient to consider in what way this appUcation should be 
dealt with — I think in justice the prohibition ought to issue, 
but as a matter of pure justice only — strict justice on a point 
of law, because I cannot conceal from myseK that the conduct 
of Emmerson was quite unjustifiable. He committed a wilful 
trespass, and was guilty of conduct which almost amounted to a 
breach of the peace, and certainly tended strongly to provoke 
an offence of that kind. I do not consider that the applicant 
is at all entitled to indulgence or anything like the favourable 
consideration of the Court. As a matter of strict law, I think he 
is right in this application, and therefore the prohibition should 
issue. It might perhaps be better for him to allow the conviction 
to stand. We have power to make him pay costs notwithstand- 
ing that we have directed the prohibition to issue, .and we must 
do what we think is fair and just under the circumstances of the 
cases. On that point I shall, in conjunction with the learned 
Chief Justice, reserve my decision as to the particular way we 
will deal with the costs or the return of the money, which is op- 
tional. In Bowman's Case, the fine having been paid and distri- 
buted, the Court refused to make any order as to the return of the 
money, but they ordered the prohibition to issue. 

Cockle C.J. concurred. 

The prohibition was allowed ; the question of costs and the 
return of the money reserved. 

18th September. 
Cockle C.J. : This conviction was the unanimous decision 



Emmebson v. 
Cmbke. 

Lutwyohe J. 



Cookie C.J. 



78 



QUEENSLAND JUSTICE OF THE PEACE. 



Emmbeson )■. 
Clarke, 

Cockle C.J. 



of four justices, who, in our opinion, rightly heard the case through- 
out ; but on a strict interpretation of the law, and with no merits 
that we can see, the defendant has come before us to reverse the 
proceedings. He has not come simply to relieve himself from 
the burden inflicted on him, but, in the first place, he prays costs 
against the prosecutor ; he makes an imputation against one of 
the justices ; and he raises one unfounded ground of appeal. 
Now, being of opinion that the conviction could not be sustained 
on the evidence, we must, of course, relieve him from the conse- 
quences of it ; but he has no claim to our consideration on the 
question of costs. We cannot make him pay the costs on the 
whole of the rule, because it would be unjust to say that he should 
pay the costs of relieving himself from a judgment which cannot 
be sustained ; but so far as the form of the rule is concerned, 
considering that he had brought persons before us who would 
otherwise have refrained from coming here, we think that the 
rule must be made absolute. He will, of course, get no costs, 
and he will pay the costs of William Clarke, and he will also pay 
the respondent Berry and the justices the costs occasioned by so 
much of the affidavits as relate to the second ground of the rule. 
The penalty and costs must be returned, and the conviction 
must be quashed. 



1873. 
15th October. 

Ltitu-yche J. 



[In Chambers.] 
R. V. KELLY. 

[ 3 S.C.B. 199.— Note.— Ss. 27 and 28 ot 35 Vic, No. 4, are repealed, see now ss. 
447 and 448 of Criminal Code.] 

The Brands Act of 1872 (35 Vic, No. 4), ss. 27, 28, 35— Wilfully 
branding — Evidence of owner shif. 

A registered brand is prima facie evidence of ownership for the prosecution, but 
is not to be used for evading a prosecution. 

Section 27 of The Brands Act of 1872 applies to all cattle, branded or unbranded, 
and it is no defence to a prosecution under that section to say that the defendant 
had made himself amenable to the provisions of s. 28. 

Application for an order nisi for a writ of prohibition against 
G. W. ElUott, Police Magistrate, Toowoomba, and John Hegarty, 
of Stoney Pinch, near Toowoomba, farmer. 

Hely in support of the application. 

The facts of the case were as follow : — On the 3rd of October, 



CRIMINAL REPORTS, 1860-1907. "79 

Thomas J. Kelly was charged before the Police Magistrate of E. d.^Kelly. 

Toowoomba, on an information laid under s. 27 of The Brands 

Act of 1872, with wilfully branding a heifer, of which he was 

not the rightful owner, with his registered brand. John Hegarty 

swore that the heifer in question was his property, and that it 

bore his brand JH on ribs and No. 2 on the rump on the milking 

side. Two months ago he missed this heifer and another steer, 

but on October 26 she came back, and he then noticed that 

she had the brand TKO over his (Hegarty's) No. 2, and that she 

had been newly ear-marked. This brand he discovered to be 

defendant's registered brand, and the next day he went to his 

place and told him that he had made a mistake in branding the 

heifer. Kelly said it must have been a great mistake if he had 

done so, and that he would give Hegarty two unbranded ones 

if his (Hegarty's) brand was found on the heifer, together with 

his (Kelly's). Hegarty's ownership of the heifer was also sworn 

to by John Quinlan, farmer, Gowrie Creek, and John Curtis, 

farmer, below the Range. 

For the defence, evidence was adduced to show that the heifer 
in dispute was remarkably like one possessed by the defendant, 
.and that Hegarty's brand was very faint and dim. Robert 
Macarthy, who was frequently in the defendant's employment 
•during the last seven years, swore that he had assisted Kelly 
in putting his registered brand, on the cow eight months ago, 
and also his ear-mark. At that time no former brand was to be 
seen on the heifer. 

Hely stated that the information was laid under s. 27 of The 
Brands Act, which enacted that " If any person shall wilfully 
brand any stock of which he is not the rightful owner or shall 
wUfuUy cause direct or permit any stock of which he is not the 
owner to be branded with his brand such person shall on con- 
viction for every such offence in a summary way forfeit and pay 
any sum not exceeding £50." The Magistrate had exceeded his 
jurisdiction, as the evidence clearly showed that the defendant 
had not wilfully branded the heifer, knowing her to be not his 
own, for he had really believed her to be his property. The 
word " wilfully " meant intentionally and with premeditation. 
If there were any offence at all committed by the defendant it 
was against s. 28 of the Act, and not s. 27. Section 28 enacted 
" That any person who shall wilfully blotch deface or otherwise 
render illegible or alter any brand or mark upon stock or permit 
any such brand or mark to be blotched defaced or otherwise 



so QUEENSLAND JUSTICE OF THE PEACE. 

E. V. Keixt. rendered illegible or shall wilfully cause direct or permit any 
stock to be marked on the ear or dewlap shall on conviction 
for every such offence forfeit and pay any sum not exceeding 
£20 for every head of stock " so treated. The brand of the defend- 
ant, it was sworn, was put on over Hegarty's No. 2, and also 
the defendant's ear-mark was put over the plaintiff's. The 
evidence did not therefore support the information, inasmuch as it 
was laid under the wrong section ; and furthermore, the defend- 
ant was fined £30, whereas the highest penalty allowed by s. 28 
was £20. Again, s. 35 provided that for the purpose of any 
prosecution or action under this Act, any registered brand upon 
any stock shall be prima facie evidence of the ownership of such 
brand, and of the stock on which such brand is imprinted. It 
was proved that Kelly's was the only registered brand on the 
heifer, and according to this section that should be taken as 
prima facie evidence that she belonged to him. 

Lntwyehe J. Ltjtwyche J. : In the first place there was sufficient evidence 

on the face of the depositions to show that the heifer belonged 
to Hegarty, and also that Kelly had branded her with his brand. 
As to the meaning of the word " wilful," it is hard to say what 
was the state of the defendant's mind when he committed the 
act, and the decision of that question must, I think, be left to 
the Bench, once it was proved that the act had been committed 
by him. Again, they had the defendant's statement to Hegarty 
that the heifer was his (Kelly's) property, and that might be 
taken as evidence of his wilful commission of the offence. As 
to the registered brand being taken as prima facie evidence of 
ownership, that applies in cases where it is necessary for the 
support of a prosecution, but it is not to be used for the purpose of 
evading a prosecution. Otherwise it would be offering a premium 
for cattle-stealing, because any man could go and take a cow and 
put his own registered brand over the old brand, and it would 
then have to be held that the cow was prima facie his property. 
Section 27 of the Act applies to all cattle, branded or unbranded, 
and furthermore, it is not a sufficient defence to a prosecution 
brought under that section, to say that the defendant had made 
himself amenable to s. 28.* For these reasons the application 
must be refused. 

Solicitor for the applicant : Hamilton. 

* See Curran v. Dowzer (2 Q.L.J. 45). 



CEIMINAL REPOETS, 1860-1907. 



81 



BEGIN A V. PORTLEY. 
[3 S.C.R. 202.— Note.— See also s. 628 of Ciimlnal Code.] 

Criminal law — Practice — Illness of a juror — Discharge — 11 Vic, 
No. 20, s. 23.* 

When a juror has been taken ill and is unable to act, and either party objects to 
a new juror being added in his place, the jurors must be discharged, and the cards 
which bear the names of the jurors who have been discharged from giving a verdict 
must be returned to the box, and a new jury must be drawn from the box, leaving 
the Crown and the prisoner to exercise their right to challenge as before. 

Crown Case Reserved. 

The facts appear in the judgment. 

Ltjtwyche J. : This matter comes before the Court upon a 
case reserved from the last criminal Assize under the provisions 
of the Act 13 Vic, No. 8 (Call. 1937). The information charged 
the prisoner with stealing, while servant to Richard Gill, goods, 
the property of her master. A large proportion of the 48 jurors 
returned on the jury panel were challenged, several being desired 
to stand aside by the Crown, while on the part of the {)risoner 
the full number (20) of peremptory challenges allowed by law 
in cases of felony were exhausted. A full jury having been at 
length obtained, the trial proceeded, but while a witness was 
beiQg examined for the defence, one of the jurymen was seized 
with an epileptic fit, and was carried out of Court in a state 
of insensibiUty. After some time had elapsed it was stated to 
the Court by a surgeon who had attended the ailing juryman that 
although he was somewhat better it was doubtful whether he 
might not be visited by another fit if he were required to act as 
a juror during that day, whereupon the judge of assize said he 
was of opinion that the jury should be discharged from giving 
a verdict, and the jury were so discharged accordingly. The 
Crown Prosecutor suggested that, in order to save time, a new 
juror might be added to the eleven who had heard the evidence 
already given, and B. v. Edwards (Russ. & Ry. 234, 4 Taunt. 
309, 13 R.R. 601), was cited. Mr. Blakeney, however, who 
was counsel for the prisoner, refused to consent to this mode 
of proceeding, unless accompanied by a renewal of her right of 
peremptory challenge, which the judge refused to allow, and 
ruled that the trial should proceed with a fresh juror added to 
the original eleven, and that the prisoner's right of challenge 



Supreme Court. 

New South Wales, 

Moreton Bay.. 

1859. 

5th July. 

Lutwyche J. 



Lutwyche J. 



* See now 31 Vic., No. 34, s. 22. 



82 



QUEENSLAND JUSTICE OF THE PEACE. 



Regina v. 

POBTLEY. 

Lutwyehe J 



should be confined to the person or persons called to complete 
the jury. Another juror having been called, and having answered 
to his name, he and the original eleven were all sworn, and the 
prisoner was given in charge to them. After the new jury had 
been impanelled they were locked up for the night in a room 
at one of the principal hotels, and the trial was resumed on the 
morning following, when, by consent of counsel on both sides (but 
without waiving the objection to the disallowance of the right 
of challenge) the evidence which had been given on the previous 
day by the witnesses for the Crown was read over to each of them 
by the judge from his notes, and each was asked, after having 
been re-sworn, whether his evidence had been correctly taken 
down, and whether his evidence was true. The trial then pro- 
ceeded, and the prisoner was convicted. The question of law 
for the opinion of the Court in Banco is, whether the prisoner 
was rightly convicted, or whether there was a mis-trial under 
the circumstances above set forth. Upon an examination of the 
printed reports, it appears that the point raised by this case 
has never yet been determined by a judicial decision of any of 
the EngUsh courts. The practice, however, as might be inferred 
from R. V. Beere (2 M. & Rob. 472) would be in favor of the general 
right of challenge as claimed, but neither from that case nor 
from R. V. Edwards (supra) can it be collected that the privilege 
would have been allowed if the prisoner, as in the present instance, 
had previously exhausted the full number of his peremptory 
challenges ; on the contrary, it would rather seem from the 
report of R. v. Edwards, in Taunton, that such a right would 
have been denied by the Court, for Mr. Baron, Wood was there 
of opinion that the opportunity for peremptory challenge had 
gone by, and that the prisoner could only challenge for cause 
shown. It is unnecessary, however, to dwell upon speculative 
probabilities, because the Court thinks that the question is con- 
cluded by the language of the colonial Jury Act, which was not 
referred to at the trial (11 Vic, No. 20, Call. 1767). Section 23 
enacts that upon calling for trial any criminal issue the clerk of 
the Court shall in open court put pieces of card furnished by the 
sheriff into a box, and shall draw out therefrom the said pieces 
of card, one after the other, until twelve men shall appear without 
just cause of challenge, which said men, being duly sworn, shall 
be the jury to try such issue. It then provides that the pieces of 
cards containing the names of the jurors so drawn and sworn as 
aforesaid shall be kept apart by themselves until such jury shall 



CRIMINAL REPORTS, 1860—1907. 



8S 



liave given in their verdict, or shall he discharged, and that then 
the said 'pieces of card shall he returned to the hox, there to be k^t 
with the other names remaining undrawn, and so toties quoties 
so long as any issue remains to be tried. There is indeed an 
additional proviso authorising the trial of any criminal issue 
with the same or some of the same jury previously drawn to try 
any other criminal issue. But it is to be noticed, in the first 
place, that the jury which had been previously drawn was not 
drawn to try any other issue than that joined between the Crown 
and Bridget Portley ; and, secondly, that such a trial can only be 
had where no objection is made on behalf of the Queen or any 
other party. And as Mr. Blakeney did not object to try the issue 
joined between the Crown and the prisoner, except upon conditions 
which the judge of assize had no power to grant, the Court is of 
opinion for both of these reasons, that the course of proceeding 
adopted at the trial was irregular, and that as a mistrial has con- 
sequently taken place, a new trial must be granted. The practice 
which must be observed in future in similar cases wiU be to return 
to the box the cards which bear the names of the jurors who have 
been discharged from giving a verdict, and to draw from the box 
a new jury, leaving the Crown and the prisoner to exercise their 
right of challenge as before. 



Regin^ V, 

PoRTLIiY. 

Lutwyehe J. 



[In Banco.] 
REGINA V. HOSKINGS. 

[4 S.C.R. 24.— Note.— See s. 350 of Criminal Code, and R. v. Schloss and Maguire 

(8 Q.L.3. 21, post).] 

Indecent assault — Evidence of non-consent — Witness. 

On a charge of indecent assault, evidence of want of consent ought to be given, 
but where it is shown that the person assaulted is incapable of giving consent, it is 
not necessary to call such person as a witness. 

Cbown Case Reserved by C. H. Blakeney, Judge of the 
Western District Court at Dalby. 

The prisoner, WilUam Hoskings, was tried at Dalby for com- 
mitting an indecent assault upon a girl, aged sixteen, named 
Jane Howe, on October 25th last. The girl Hved with her 
mother, and had been left by her, on the day in question, in the 
kitchen of their house. On returning in about an hour she 
found the prisoner in the act of committing the offence for which 



1873 
8th December 

Cockle G.J. 
Lvtwyche J. 



84 QUEENSLAND JUSTICE OF THE PEACE. 

Kegina r. ]^g jja^^ been tried. On seeing her he immediately ran away : 

Hof KINGS. ° ■' "■ 

but she gave information to the pohce, and he was arrested 

the following day and identified by her. Upon his arrest by 
Constable Brady he was told the charge against him, and 
he then said he had not done anything but what he had paid for. 
Dr. Howlin, a medical man, swore that the girl had been under 
his care for a very long period ; that she was subject to epileptic 
fits ; was of a very weak intellect, and he did not think that she 
was capable of consenting or resisting the cornmission of the 
offence. In his opinion, however, she was capable of appreciating 
the difference between truth and falsehood. Mr: Chubb, the 
solicitor for the prisoner, asked the Judge to withdraw the case 
from the jury, on the ground that there was no evidence of 
want of consent. This he refused to do, and, in his summing 
up, told the jury that if the prisoner exposed the person of Jane 
Howe it was sufficient to sustain the information. On the 
question of consent, the jury received no direction, the Judge 
holding that that was a point of law. Mr, Chubb objected 
to the Judge's summing up ; first, because the jury were not 
told to acquit the prisoner on the ground of want of consent not 
being proved ; and, also, because Jane Howe was not called, 
she being a competent witness. The questions reserved for the 
consideration of the Court were — (I) Was the Judge right in 
refusing to withdraw the case from the jury on the point raised 
by the defendant's advocate ; (2) was the Judge right in refusing 
to direct the jury to acquit the defendant on the ground that 
there was no evidence that the assault was committed against 
the consent of Jane Howe ; (3) ought the Judge to have directed 
the jury upon the points and in the manner stated by the 
defendant's advocate in his objections to the directions ? 

Pring Q.C., for the prisoner : There must be some evidence 
of want of consent. {R. v. Johnson, L. & C. 632). There is a 
distinction between carnal knowledge and indecent assault in a 
case of a girl under twelve years of age. {R. v. Fletcher, 1 C.C.R. 
39; R. V. Beale, 1 C.C.R. 10). 

Hely, for the Crown, argued that submission was not consent. 
(R. V. Fletcher, 1 Bell 63 ; R. v. Lock, 2 C.C.R. 10). Here there 
was evidence of weakness of intellect, some evidence of violence, 
and the prisoner was a stranger. If there is no consent, and the 
act is wrong, there is an assault. {R. v. Williams, 8 C. & P. 286 ; 
R. V. Day, 9 C. & P. 722 ; R. v. Case, 1 Den. C.C. 580 ; R. v. Nichoh 
R. & R. 130.) 



CRIMINAL REPORTS, 1860—1907. 



85 



Pring, in reply. There might be such submission as implies Reoina «. 

consent, and the circumstances pointed to that having been its 

character in this case. 

Cockle C.J. : It is no doubt competent for us to send back Cockle C.J. 
'the case to be amended, a proceeding which we should adopt in 
any case in which we thought it essential to the ends of justice ; 
but here the substantial question is, whether there was any 
evidence to go to the jury, and, as on that substantial point 
we are against the prisoner, we do not think it necessary to send 
the case back for amendment. Still less do we think it necessary 
to criticise an isolated passage in the summing up, which, regarded 
in connection with the whole of the Judge's observations, or 
with the whole proceedings of the trial, might bear a different 
interpretation to that which, at the first glance, it seems to bear. 
We prefer looking at the points stated in the case for our con- 
sideration, and confining ourselves to the questions raised by 
those points. The learned Judge was called upon to withdraw 
the case from the jury, which he refused, and, we think, quite 
rightly refused to do. The specific grounds of objection to the 
Judge's direction which followed were three in number — (1) That 
the learned Judge should have directed an acquittal on the ground 
that there was no evidence that the assault was committed 
against the consent of Jane Howe. However valid such objection 
might be in the ordinary run of cases, yet here we must remember 
that there was evidence, with which it was for the jury to deal, 
that the assaulted woman was a being incapable of giving consent, 
and consequently the direction which the advocate for the prisoner 
called upon the learned Judge to give was something equivalent 
to this — that if the act was done against her consent, or that 
if she was a person incapable of consenting, and that this was 
an indecent, forcible, and wrongful act done upon her without 
consent, then the jury might convict. What the learned Judge 
was called upon to do was to regard the first branch of this 
alternative, and to disregard the latter altogether. Consequently, 
we think that in this particular case, in which there was evidence 
of incapacity to consent had the Judge simply directed as he 
was called upon to do, the jury would have been thereby misled 
and the ends of justice would not have been advanced. The 
second point was that he had omitted to direct the jury that 
Jane Howe was a competent witness, and ought to have been 
produced by the Crown to negative the presumption of consent. 
Obviously here we think there was no duty incumbent upon the 



QUEENSLAND JUSTICE OF THE PEACE. 



Begina v. 
hoskinos. 

Cockle C.J. 



Lutwyche J 



Judge to give any such direction to the jury. The caUing or 
non-calling of a witness either on behalf of the Crown or the 
prisoner is a matter for observation only. There is the point 
that the learned Judge ought to have directed the jury that they 
must be satisfied that the assault was committed against the 
consent of Jane Howe. This would have been a very proper 
call to make upon the Judge had there been no evidence to show 
she was incapable of giving consent. With regard to the three 
points reserved for our consideration, I think we must determine 
them against the prisoner. We think the learned Judge was 
right under the pecuhar circumstances of the case in refusing to 
withdraw the case from the jury on the point raised by the 
defendant's advocate. He was also right, in our opinion, in 
refusing to direct an acquittal on the ground that there was 
no evidence that the assault was committed against the consent 
of Jane Howe. If she were incapable of giving consent, there 
was, in our opinion, a wrongful, forcible, and indecent act com- 
mitted against her. I am therefore of opinion that the conviction 
ought to be affirmed. 

Lutwyche J. : I am of the same opinion. With reference to 
the second direction, it has not been argued by the learned 
counsel for the prisoner, but I, nevertheless, think it right to 
express a strong opinion, that the learned Judge acted perfectly 
right in not directing the jury that Jane Howe was a competent 
witness, and ought to have been called by the Crown to rebut 
the presumption of consent. I can easily understand the reason 
that induced the learned counsel, who conducted the prosecution 
on behalf of the Crown, to abstain from calling her. He might 
have thought that it would imperil the case and defeat the ends 
of justice, and knowing, as he did, that it laid him open to obser- 
vation on the part of the advocate of the prisoner, and also to 
observation, but observation only, on the part of the learned _ 
Judge, I think he exercised a very wise discretion in abstaining 
from calKng her as a witness. I also think that the learned 
Judge acted perfectly right in not directing the jury that she 
ought to have been called to negative the presumption of consent, 
for such presumption did not arise upon the evidence, if, as the 
case went to show, she was incapable of consenting. I believe 
that in ordinary cases evidence of want of consent ought to be 
given ; but where it is shown that the person assaulted has no 
will to exercise, and is, therefore, incapable of giving consent, 
then I think it is quite sufficient to leave the case to the jury 



CRIMINAL REPORTS, 1860-1907. 



87 



upon that evidence. That view has certainly been upheld in 
all the cases quoted, except in the case of R. v. Loch, in which 
Mr. Justice Brett rather qualified it. We say there was evidence 
to show the incapacity to consent, and that might, therefore, 
go to the jury as evidence of the act of assault. That appears to 
me to be the true distinction, and reconciles all the cases which 
have been brought before the Court. I also think that the 
conviction ought to be confirmed. 



Eeoina v. 
hoskinos. 

Lutwyohe J. 



[In Banco.] 

LONG V. RAWLINS. 
[4 S.C.R. 86.] 
Assault — Right to enter a church — Public worship — Trespass. 

A person claiming to be a member of the Baptist Church wag prevented from 
entering the church on a Sunday by one L., acting under instructions. A majority 
of the Bench found L. guilty of assault, fined him, and placed on record their 
opinion that the plaintiff, as one of the public, had a right to enter the church in 
question. 

Held, without deciding whether the complainant had a right to enter the church, 
that there was evidence to support the conviction. 

Semble, that the question whether a member of the public has a right to enter a 
church for worship depends upon the rules of the church and its trust deed. 

If a man be a trespasser, he can be sued for trespass in a court of competent 
jurisdiction. He should receive notice to leave before he is ejected.* 

Motion to make absolute an order nisi calling upon F. Rawlins, 
Police Magistrate, and other Justices of the Peace, and Wilham 
Langley, to show cause why the conviction against John Long for 
assault should not be quashed, on the ground that the opinion and 
decision of the majority of the Bench, and the conviction founded 
thereon, was erroneous and contrary to law. 

The complainant, WiUiam Langley, summoned John Long for an 
assault, in an attempt to prevent his entrance to the Wharf Street 
Baptist Church. Langley, in his evidence, stated that he was a 
member of the Baptist Church. On Sunday, the 26th of April, as 
he was walking up from the entrance gate to the building, the 
defendant came to him, and, in a most ferocious manner, laid 
hold of him, saying, " Did I not tell you not to come in here ? " 



1874. 
6th August. 

Cockle C.J. 
Lilley J. 
Sheppard J. 



*See Criminal Code, s. 207. 



88 QUEENSLAND JUSTICE OP THE PEACE. 

Long v. RiWLiNs. flg did not actually strike complainant, but began pulling and 
tearing his clothes. The complainant offered no resistance, 
and did not retaliate in any way. Whilst he was adjusting his 
clothing the defendant went on very violently, saying that he 
would murder the complainant but for the people about. He 
gave no reason for his conduct. In cross-examination the 
complainant admitted that he had been informed by letter that 
he had ceased to be a member of the church, and three Sundays 
before that he was forbidden to go into the church. The violence 
arose out of the assertion by him of his right to enter the church. 

James Swan, a senior deacon and one of the trustees, swore 
that the doors of the church were thrown open on Sundays for 
public worship, but could be closed if the church chose. They 
were thrown open to the members in particular, but also to the 
public if they behaved themselves. There were no pew rents or 
registered sittings in the church, and the seats were in a manner 
free. The defendant was stationed at the gate by the authority 
of the church. A meeting was held, at which it was decided 
to keep out the complainant as a disturber. It was necessary 
to keep him out for the sake of common decency and propriety, 
as his presence completely obstructed pubhc worship, and inter- 
fered with the ceremony carried out by the pastor. 

WilUam Moore, another trustee of the church, swore that he 
would not interfere with anybody going into church to attend 
public worship, and if a person were expelled the society, he 
would not be interfered with attending the congregation meeting ; 
but, if a person misbehaved himself whilst there, he would have 
him put out. Henry George Cray, one of the deacons, swore 
that he had noticed, on several occasions, the complainant's 
conduct to be disorderly in the church. He was pertinaciously so, 
and in defiance of remonstrance. 

The majority of the Bench decided that the complainant had 
a right, as one of the public, to enter the church in question, and 
fined the defendant £2 and costs, or in default seven days' im- 
prisonment. The Police Magistrate and one of the Justices 
dissented. 

Griffith A.G. and Pring Q.C. moved the rule absolute. 

Blake Q.C. and Harding for Langley showed cause. The com- 
plainant had a perfect right, as one of the public, to enter the 
church, even if he was not a member. There was evidence that 
other persons could go to the church, and nothing had to be done 
previously to entitle them to admission. If Langley misconducted 



CRIMINAL REPORTS, 1860-1907. 89 

himself in the building, there was power to remove him. [Lillby ^°^'^ "• Rawlins. 
J. By the trust deed the church is apparently limited to a par- 
ticular society, now and hereafter assembling therein. It appears 
to me the question of complainant's right of entrance does not 
arise. This is a conviction for assault, and we have to say if 
there was sufficient evidence to sustain it. There was nothing 
to show Langley meant to interrupt.] Williams v. Glenister 
{2 B. & C. 699, 4 D. & R. 217) ; Polkinhorn v. Wright (8 Q.B. 
197 (206) ; Byerly v. Windus (5 B. & C. 1) ; Mainwaring v. Giles 
(5 B. & A. 356) ; Lang v. Purves (8 Jur. (N.S.) 523, 10 W.R. 
468, 15 Moo. B.C. 89) ; Wood v. Leadhitter (13 M. & W. 838) ; 
and Detcham v. Bond (3 Camp. 524) were cited. 

Griffith A.G. : If there was no right on the part of Langley to 
enter, there was no evidence to show that any excess of violence 
had been used in ejecting him. 

Cockle C.J. : Some questions of importance were probably Cockle C.J. 
intended to be raised, but are not raised by this order nisi, which 
seeks a prohibition on the ground that the opinion and decision 
of the majority of the Bench, and the conviction founded thereon, 
was erroneous and contrary to law. Now, I think that this 
Court ought not to disturb a decision simply on the suggestion 
that it had proceeded on wrong grounds. So far as I understand 
the entry of the proceedings, the opinion and decision not only 
of the majority of the Bench, but of the whole Bench, was that 
an assault had been committed, and that the conviction was 
founded thereon. I can hardly say that the conviction was 
erroneous and contrary to law, because, whether Langley was 
or was not a trespasser at the time of the committal of the 
alleged assault and battery, still there is evidence which the 
magistrates may have believed, and on which they may have 
acted, that more violence was used than the law would justify 
on such an occasion. Moreover, it does not appear by necessary 
implication that the conviction was founded upon this opinion, 
of which so much use has been made in the course of the case. 
The entry is : "A majority of the Bench are of opinion that the 
plaintiff had a right, as one of the pubhc, to enter the church in 
question." The reason for the insertion of these words — which 
appear to have been put in on the suggestion of the learned 
counsel for the defendant, the plaintiff not being represented by 
counsel — might have been as suggested by my brother Lilley, 
for sake of peace, or with the object of promoting an understanding 
between the parties, or with the view of explaining why a merely 



90 



QUEENSLAND JUSTICE OF THE PEACE. 



Long v. Bawlins. nominal penalty was not inflicted. That it was fixed at 40s, 
Cockle C.J. was because they believed there was an infraction of a substantial 
right. But it was a question which did not come before the 
Court in a way enabling us to answer, and it would be going too 
far for us to say that the decision of the Bench supported by 
evidence should be disturbed because the magistrates had put 
an opinion on the record which they could not say was purely law, 
or one of mixed law and fact. For these reasons I think the 
order must be discharged. 

Lilley J. LiLLEY J. : I agree with the judgment which the learned Chief 

Justice has dehvered that this order must be discharged, and I 
think also with costs. We have nothing before us to enable us to 
come to the determination that this opinion was the sole ground 
for the magistrate's decision. Neither do I think have we 
materials before us, even if they were so, to enable us to say that 
their decision was actually wrong. There was some evidence from 
which the Justices might infer — the evidence of Messrs. Moore 
and Swan — that the rules of the society, for whose benefit this 
trust deed was executed, entitled the public, under certain, 
conditions, to enter that building for public worship. They 
might, therefore, have come to that conclusion. It is impossible 
for us to say whether they were right or wrong on the materials 
before us. It is, moreover, wholly immaterial in this matter. 
I will assume that the chapel being opened an invitation is 
given to the general public to enter and worship. I will asume, 
further, that they have power to say to any one individual in the 
community, " All others may enter, but you are excluded from 
that invitation." Yet, if a man presents himself, as Langley did, 
is there a right to seize him, even if it is admitted that he was a 
trespasser, and by threat and assault drive him back. I certainly 
think not. I think we must hold, if it were only for the preserva- 
tion of the public peace, that a warning must be given. For all 
Long knew, Langley might have been going on an errand of 
peace, because it was unknown to him that he was simply 
asserting his right to enter. It would be a most dangerous thing 
to hold that a man can assault a trespasser without previously 
telling him to withdraw. My opinion is, on the evidence before 
us, that the conviction was right. No doubt the parties wish 
this question determined upon which the magistrates gave an 
opinion, namely, whether one of the public has a right to go into 
a church for the purpose of worship ; but that depends to a great 
extent upon the rules of the society and the trust deed, which 



CRIMINAL EEPORTS, 1860-1907. 91 

do not appear before us. Neither do I think that this is the Lono v. Bawmnb. 
proper way of bringing the point forward for a decision. If a Lilley J. 
man be a trespasser let him be sued for trespass, and let the 
question be determined by a Court of competent jurisdiction. 

Sheppard J. ; I also agree with the decision. With regard Sheppard J. 
to the right of the public to enter a church, the Magistrates have 
given an opinion which probably they would have been glad to 
have decided by this Court, but it is not necessary for the decision 
of this case, and it does not seem to me that we are called upon 
to give an opinion on a point on which a good deal can be said 
for and against, and which is one of very great importance. 
As to the costs, I behave Lord Wensleydale's dictum is the 
correct one, that costs must not be imposed either as a punish- 
ment or a penalty, but must follow as a consequence of unsuccessful 
litigation. 

Order discharged with costs. 

SoHcitor for complainant : T. Bunton. 

Sohcitors for appellant : Macalister cfc Mein. 



[In Insolvency.] 
In re LONG. 



[4 S.C.R. 120.— Note.— Sections 208 and 216 ol 38 Vic., No. 5, are repealed, see now 
ss. 530 and 698 o( Ciimiaal Code.] 

The Insolvency Act of 1874 (38 Vic, No. 5), ss. 114, 208 (2), 216— 1875. 

Committal of debtor for trial after examination under s. 114 — 28th May. 
Transfer with intent to defraud. Lilley J. 

Before exercising tlie power of committal of an insolvent under s. 216 of The 
Insolvency Act of 1874, the Court must be satisfied that such a case has been made 
out as would, if not broken down or answered by counter-evidence, justify a 
probability of the insolvent's conviction by a jury. 

Motion by the oflScial trustee for the committal of John Long , 
an insolvent, for trial for an offence against The Insolvency Act 
of 1874. 

At an examination of the insolvent under s. 114 he stated that 
he had transferred certain land a few days before his adjudication, 
having purchased the property with his sister's money. The 
insolvent's brother had since, in the insolvent's presence, handed 



92 QUEENSLAND JU&TICE OF THE PEACE. 

In re LoNo. the transfer to the official trustee. All the other necessary facts 
appear in the judgment. 

Pring Q.C., for the official trustee, appUed under s. 216 for the 
committal of the insolvent for trial for an offence against The 
Insolvency Act of 1874. He referred to ss. 208 (2) and 216 of 
the Act 38 Vic, No. 5. 

Thynne for the insolvent. 

Lilley J. LiLLEY J. : I think the power I am called upon to exercise is a 

very summary one. Were I at once to commit the insolvent for 
trial, he would, under this peculiarly-worded section, go from 
this jurisdiction under the disadvantage of a preliminary judgment, 
because the section states that should it appear to the Court that 
the insolvent is guilty of the offence. I take it that what ought 
to have been the wording of the statute — and what no doubt was 
the intention of the Legislature — is that the Court should have 
the power to commit the insolvent if a prima facie case shall appear 
to have been made out against him after his examination. I shall, 
therefore, in the first instance, before I can exercise such a power, 
have to be satisfied that such a case has been made out as would, 
if not broken down or answered by counter-evidence, justify 
a probabiUty of the insolvent's conviction by a jury. The only 
portion of the case which it seems to me has been proved against 
the insolvent is the purchase and conveyance to his brother, 
Daniel Long, of a cottage at Warwick. I now have only the 
insolvent's own statement. Whatever may be the truth or 
falsehood of that statement I have not to consider, but what will 
be the probability of a jury convicting upon it. In the first 
place the insolvent said he bought the property with the money 
of his sister. The question arose whether he was acting for her 
or her husband, if she were married ; but upon this subject the 
Court is in the dark. It was said that the allegation concerning 
the sister was false, and for this reason, that he transferred the 
property to his brother after he had been served with a writ by 
one of his creditors. That as it stands, if supported by some 
other evidence, might have great weight with a jury. Then 
there is the circumstance that the brother has in his presence 
surrendered the transfer to the official trustee. I must say 
there is a case of suspicion, and perhaps there is sufficient evidence 
to justify me in holding him to bail to appear before a Justice of 
the Peace, a course which, if strongly pressed, I will follow. At 
the same time I may point out, if any additional evidence can be 



CRIMINAL EEPORTS, 1860-1907. 



9» 



obtained, the insolvent can, at any time, be summoned before a 
magistrate to answer for the offence, without the Court now 
binding him over. 

Pring Q.C. : 1 will not press for the insolvent to be bound over, 
as I am not quite sure whether the additional evidence can be 
obtained. 

Solicitor for official trustee : Wilson. 



In re Lono. 
LiUey J. 



[In Banco.] 

R. V. JIMMY.* 

[4 S.C.R. 130 ; 7 Q.L.J. N.C. 106.— Note.— R. v. Gomez, cited in footnote, was 
reported in 5 S.C.R. 189, and is reprinted herein, post.] 

Criminal Law — Piracy — Jurisdiction — Territorial waters — 7 Wm. 
IV. and 1 Vic, c. 88, s. 2—12 and 13 Vic, c 96, s. 3. 

A prisoner was charged with piracy on «, vessel lying within a line drawn from 
one headland to another on the coast of Queensland, and between the mainland 
and an island which had been annexed by that colony by proclamation. 

Hdd, that the locus in quo of the alleged offence was within the territorial juris ■ 
diction of the colony, and therefore subject to the municipal law of the colony, and 
that no act of piracy could be there committed. 

Crown Case Reserved by Sheppard J. 

Jimmy, an aboriginal, was tried at Townsville, on May 26th, 
before Sheppard J. The first count of the information charged 
the prisoner with having, on 9th June, 1874, with force and arms, 
and upon the high seas, and on board the schooner " Albert 
Edward," then lying in Challenger Bay, distant about three 
leagues from the coast of the colony, piratically, unlawfully, 
maliciously assaulted and wounded, with intent to murder, 
Robert Mackay and Donald Henderson, for the purpose of enabling 
him to steal the said vessel and her cargo. 

The information was laid under s. 2 of 7 Wm. IV. and 1 Vic, 
0. 88 (Pain & Woolcock's Statutes, 3138). The Crown Prosecutor, 
at the instance of the Judge, elected to proceed in respect of the 
wounding of Henderson. It appeared that the schooner, of 
which Mackay was master, was sailing under the British flag, 
and at the time of the commission of the offence alleged was lying 



1875. 
i!4th September. 

Cockle C.J. 
Lutwyche J. 
Lilley J. 
Sheppard J. 



*E. V. Gomez (reported in Brisbane Courier), 1st June, 1880. 

Code, ss. 81-82. 



But see Criminal 



94 



QUEENSLAND JUSTICE OF THE PEACE. 



B. V. JiMMT. jn Challenger Bay, off Palm Island, inside an imaginary line 
drawn from one headland of the bay to another, and distant from 
the island from a quarter to half-a-mile. There were from three 
to four fathoms of water at the spot where the ship was lying, 
and it was beyond low water mark. There was also another 
island between Palm Island and the mainland, with a passage 
between, through which any vessel could go. The vessel waB 
lying on the mainland side of the island, and the mainland could 
be seen from her deck. A proclamation in the Government 
Gazette, annexing the islands within sixty miles of the coast, was 
put in evidence ; and the Judge directed the jury that, although 
the proclamation had the effect of making the island in question 
a portion of the Colony of Queensland, it did not so constitute 
it a part of the colony in the sense that, within a line drawn from 
one headland to another of Challenger Bay, the crime of piracy 
could not be committed, and he directed the jury that the vessel 
■was in such a position that, in point of law, the crime of piracy 
could be committed : but entertaining some doubts as to whether 
in point of law, the proclamation had not the effect of rendering 
Palm Island a portion of the " district or country " from which 
it was divided by the sea, and whether the ship was not within 
the " body " of the country or district, the Judge reserved for the 
consideration of the Judges in Banco the question whether, 
on the evidence, the ship was in such a situation that, in point of 
law, the crime of piracy could be committed. The prisoner 
was found guilty, and sentenced to death. 

Griffith A.G., for the Crown, referred to 1 RusseU on Crimes (1865 
Ed., p. 153), R. V. Cunningham (Bell C.C. 72), R. v. Bruce (K. & R. 
243), R. V. Anderson (L.R. 1 C.C.R. 161), R. v. Mannion (2 Cox 
C.C. 158), R. V. Curling (R. & R. 123), and the statutes 8 Geo. I., 
c. 24, s. 1, 18 Geo. II., c. 30, 39 Geo. III., e. 37, 46 Geo. III., c. 54, 
12 and 13 Vic, c. 96, s. 3 ; 7 Wm. IV. and 1 Vic, c 88 ; Bacon's 
Abridgement (Piracy), and Comyn's Digest (Admiralty) E. 3, 14). 

Blake Q.C. for the prisoner. 

Cockle C.J. Cockle C.J. : I think this conviction cannot be upheld without 

going in the face of a statement made in Comyn, on the authority 
of Bulstrode. It is there stated that "it is not piracy if the 
attempt was made within a creek, port .... for that 
would be a felony triable at common law." Now, tha scene of 
the alleged piracy forms part of this colony — or, at any rate 
was -within the " body " of the colony — for the island in question 



CRIMINAL REPORTS, 1860-1907. 



95 



has been annexed by proclamation, and the locus in quo being 
within a Une drawn from headland to headland was within the 
jaws of the land. In annexing the island, this country must be 
taken to have thrown over that island the protection of the 
common law. It is not necessary to say whether the jurisdiction 
of the Admiralty will or will not be excluded, because it by no 
means follows from the fact that there is a concurrent jurisdiction 
possessed by the common law and the Admiralty, that the offence 
set out here is necessarily a piracy. There might be a concurrency 
of jurisdiction by which the Admiralty could deal with alleged 
offences occurring under the cognisance of the common law, 
but it is not necessarily to be imphed that when jurisdiction 
is concurrent, that means that the Admiralty is to deal with the 
offence in one way, and the common law in another, and by such 
a course of proceedings arrive at different results. Therefore, 
as in the present case the locus in quo is within the municipal 
law of the country, I am of opinion that the prisoner is innocent, 
at aU events from piracy, and consequently the conviction must 
be quashed. 

LuTWYCHE, LiLLEY and Sheppabd JJ. concurred. 

Conviction quashed. 
Solicitor for prisoner : — Norris. 



R. V. Jimmy. 
Cookie C.J. 



[In Banco.] 

R. V. KING. 

[4 S.C.R. 144; 1 Q.Ii.R. Pt. I., p. 73.— Note.— S. 207 of 38 Vic, No. 5, is repealed, 
see now s. 519 of Criminal Code to like effect.] 

Insolvency Act of 1874 (38 Vic, No. 5), ss. 43, 70, 115, 207, r. 38— 
Debtor'' s petition — Verification of by affidavit — Examination of 
debtor — Answers to questions — Admissibility of answers on 
subsequent trial of debtor on criminal charge. 

A debtor's petition for adjudication under s. 43 of the Act 38 Vic, No. 5, need 
not be verified by affidavit. 

The provision in s. 115 of The Insolvency Act of 1874 " that no question put to 
any insolvent on any examination under this Act shall be deemed unlawful by 
reason only that the answer thereof may expose him to punishment in respect of 
some one or more acts or things made punishable as misdemeanors," does not 
operate to render inadmissible on a subsequent trial of the insolvent for a crime, 
statements made by him on an examination under s. 114 of the Act. 



1876. 

11th and 14th 
Febritary. 

Cockle O.J. 
Lutwyche J, 
Lilley J. 
Sheppard J, 



96 QUEENSLAND JUSTICE OF THE PEACE. 

E. V. Kino. Senible, however, that an insolvent may refuse on such an examination to answer 

any question which may expose him to punishmeiit on a criminal charge. 

Ceown Case Rbseeved by Lutwyche J. on the trial of 
John Campbell King for fraudulent insolvency. 

The prisoner was tried before Lutwyche J. on a charge of 
fraudulent insolvency in trying to leave the colony, taking with 
him certain property which should have been divided among his 
creditors. The adjudication of the insolvent was proved by the 
production of the Gazette containing the adjudication, but counsel 
for the prisoner objected to proof in that form, and also to the 
adjudication itself, as having been made upon the petition of the 
insolvent, which petition was not verified or supported by affidavit 
as required by r. 38 of the Insolvency Rules. Evidence was 
tendered of admissions made by the prisoner on his examination 
under s. 114 of the Act, and objection was taken by counsel for the 
prisoner to this evidence, he relying upon s. 115 of the Act, 
Lutwyche J. admitted the evidence, but stated a case, reserving 
for consideration of the Court in Banco the questions of the 
admissibility of such evidence and of the proof of and validity of 
the adjudication of the prisoner as an insolvent. 

Blake Q.C. and Real, for the prisoner, withdrew the objection 
that the orders published in the Government Gazette were not 
conclusive evidence of adjudication on the authority of R. v. 
Levi (L. & C. 597), and admitted that the question related to 
property. 

Griffith A.G. and Beor, for the Crown, cited Ex parte Cossens 
(Buck. 531), Ex parte Kirhy (Mon. & McAr. 212), R. v. Shggdt 
(Dears. 656), R. v. Coote (L.R. 4 P.C. 599), R. v. Cross (Dears. 
& B. 68). 

Blahe Q.C, in reply. Section 115 limits s. 114. 
C.A.V. 

February 14, 1876. 
Cockle C.J. Cockle C.J. : In this case, the prisoner was indicted for a felony 

under s. 207 of the Act, and an adjudication was offered in evidence 
and objected to on the grounds that the petition was not supported 
by affidavit. The petition was a debtor's petition, which, under 
s. 43 of the Act, may serve as the basis of an adjudication upon 
due proof, which does not, as I understand the Act, mean neces- 
sarily proof by affidavit. The Court may be satisfied by other 
matter — by attestation, for instance. It has been said that under 
r. 38, it is necessary that there should be an affidavit ; but that 



CRIMINAL REPORTS, 1860-1907. 97 

rule does not, it seems to me, apply where there has been a pro- ^' - '•^™°- 
vision made in the Act itself for proceedings on petition, or even Cockle C J 
if it did apply, it would possibly be competent for the Judge 
exercising the discretion given him by the rule to be satisfied 
without such proof ; and moreover s. 70 of The Insolvency Act, 
by providing that the Gazette shall be conclusive evidence of the 
adjudication, seems to show the inchnation of the Legislature 
to destroy any such objection as that made to the admissibility 
of the adjudication. I think, therefore, there is nothing whatever 
in this point, and I now proceed to the objection raised under s. 
115 of the Act. Now, as far as I am concerned, I have the 
greatest difficulty in assigning any meaning to this section, or 
to conjecture what could have been its purpose. Interpreted 
it cannot be by the marginal note ; but even between section 
and note there seems to be a conflict. For the margination 
treats the Legislature as referring to answers and to the nature of 
answers, whether criminating or not, while at the first glance the 
section seems to refer to questions, and provides that certain ques- 
tions shall not be unlawful, and by implication that certain other 
questions are to be. " No question put to any insolvent upon any 
examination under this Act shall be deemed to be unlawful," are 
words which at first sight would seem to imply that the Legislature 
had misconceived the Common Law, and supposed that any such 
question, unless it be put to an insolvent actually upon his trial, 
and put judicially by the Judge from the Bench, would be unlawful. 
As I understand it, the Common Law is not that such a question 
cannot be put, but simply that the person may refuse to answer. 
Assuming for a moment — which I do not assume, and, in fact, I 
think the assumption ought not to be hastily indulged in — that . 
this clause is based upon misconception of the Common Law, I 
think it would be extremely dangerous for us to travel into the 
regions of conjecture, as we should were we to pronounce on the 
effect of that misconception. It has been contended here that 
the omission of the words " or felonies " at the end of the section 
shows an intention on the part of the Legislature that questions 
which in respect to misdemeanours would not be unlawful would 
be in respect to felonies. It is a possible interpretation to 
put on the Act, but it is not perfectly clear to me why a contrast 
is to be drawn between misdemeanours and felonies at Common 
Law and those under other Acts. It is more probable that the 
words should have been omitted, but it is equally probable 
that it was intended to draw a distinction. It would be very 



98 



QUEENSLAND JUSTICE OP THE PEACE. 



U. V. King. unsafe indeed to base a judgment upon conjecture. I prefer, 
GoekleC.J. therefore, one or two other interpretations, namely— in using 
this phrase, the Legislature merely meant that the question need 
not be answered, not to deprive the Judges or parties of the 
opportunities of discovery offered by putting the question, but 
simply that an unlawful question need not be answered. That, 
certainly, would seem to be the view taken by the Legislature in 
the 22nd section of 7 Vic, No. 19, which Mr. Justice Sheppard 
has kindly furnished us with, and which, after reciting that 
" if any insolvent shall refuse to answer any lawful question," 
goes on to enact that " After the passing of this Act no question 
shall be deemed unlawful by reason only that the answer might 
criminate him." Thus fortified with the expression of the New 
South Wales Legislature, of which this colony then formed a 
part, I see less difficulty in coming to the conclusion that ho 
question shall be deemed unlawful by reason only that the answer 
may expose him to punishment, has reference to the old state 
of the law, and by " unlawful," the Legislature meant questions 
to which an answer might be refused. If that be the interpreta- 
tion, of course this conviction must be affirmed, because it is 
expressly stated on the face of the case that the prisoner did not 
object to answer the questions put to him. I may add that it has . 
occurred to me that another interpretation may be put on these 
words, that they may have crept into the clause this way — that the 
Legislature had intended to enact that certain questions should be 
unlawful, they might have intended that a question intending to 
convict of these felonies should not be lawful. If that be so, cer- 
tainly there is no express enactment in the Act that any particular 
question shall be unlawful, and if the Legislature have carried 
out that part of their intention, it is only by impHcation so 
remote that it would not be safe to base any arguments upon it. 
The conviction wiU have to be affirmed. 

Lutwyche J. LxJTWYCHE J. : I also think the conviction ought to be affirmed. 

It appears to me that there is no weight in one point which was 
argued at the bar on Friday last. I think the orders of adjudica- 
tion in both cases, in respect of King and Redmond, and in respect 
of Redmond, were both good, although the petitions were not 
verified by affidavit. Rule 38 appears to me to apply to motions 
only, and the absence of the word " affidavit," when the words 
" due proof " are used in the 43rd section, leads me to tha 
conclusion that it was not intended to require an affidavit in the 
case of a debtor's petition, while in the 52nd section we have 



CRIMINAL REPORTS, 1860-1907. 99 

an express provision that the creditor's petition — then being ^- *^™* 
Tinder the notice of the Legislature — that the petition of the Lntwyche J. 
creditor shall be verified by the oath of the petitioner. 

Then with regard to the second and more important point raised 
by the language of the 115th section of the Act, I agree with the 
■Chief Justice in thinking that the words " unlawful question " 
mean a question that need not be answered ; and that being so, 
if the question is put, and the insolvent decline to answer it, 
and is nevertheless compelled to answer, I take it that in a 
prosecution for felony founded upon evidence thus extorted from 
him, he might possibly successfully object, if the question did not 
relate to his deaUngs and property. I think it would be extremely 
dangerous to hold that the law which was formerly in force, and 
which is still in force, with regard to the answers given by the 
insolvent, tending to criminate himself, when his dealings or 
property are in question, should be so altered by implication 
as to make it unlawful to put a question which might expose the 
insolvent to a charge of felony. Mr. Justice CressweU, in a case 
that came before him in the Common Pleas (Wansey v. Perkins, 
7 Man. & Gr. 142), said — " It was a safe rule, in construing Acts 
of Parliament, to look at the words of the Act, and construe 
them in the ordinary meaning, unless such a construction would 
lead to some manifest absurdity or injustice." Now, when 
words are plain, and their construction is easy, by applying 
the ordinary sense of the words to them, that should be done ; yet 
if the result should be a manifest absurdity or injustice, courts are 
then in a manner compelled to give them a different construction. 
Surely, if by impUcation we are asked to do something which 
would lead to both, we ought to be very cautious how to adopt 
such a construction. And it seems to me that it would be mani- 
festly absurd and unjust if we were to hold that a person might 
be compelled to give an answer that would expose him to a 
prosecution for a misdemeanour under this Act, while he was 
protected from giving an answer which would subject him to a 
prosecution for a graver offence. It would be holding out a 
sort of premium to criminals to sin as much as they could, and 
such a construction would certainly be unjust to the men who 
are found to have committed acts which in the eyes of the law 
are of lesser magnitude. After all, the distinction is, perhaps, 
more technical than substantial, for the two felonies which are 
mentioned in this Act seem to me to be substantially no more 
contrary to morality and the aims of pubhc justice than many 



100 QUEENSLAND JUSTICE OF THE PEACE. 

R. V. King. other acts which are enumerated as acts of misdemeanour only, 
Lutwjche J. On the whole, I think, wthout striving to point out the particular 
object which the Legislature had in view, which it is not very 
easy to discern, I think we shall, as far as we can judge, carry 
out the intention of the Legislature by confining the operation 
of the section to the words which appear in it. 

LilleyJ. LiLLBY J. : Upon the first point raised, that the adjudication 

was in effect bad, because the petition had not been supported 
or proved by affidavit, I have come to the same conclusion as 
the Chief Justice and Mr. Justice Lutwyche. The language of 
the section is, that the adjudication shall be upon due proof, 
and the Judge, who is the Court sitting to make the adjudication, 
is to exercise a judicial function, and it is for him to decide whether 
the evidence amounts to due proof, or to that sufficient degree of 
proof, which would enable him to make the adjudication. Now, 
I suppose that there can be no stronger proof than a man's own 
admission that he is unable to meet his engagements and hable 
to The Insolvency Act. 

But then it is said that the judgment of the Judge is to be 
measured by r. 38, that the rule prescribes that the proof shall be 
an affidavit. But when we look to the language of that rule, it is 
very doubtful, in the face of s. 33, which requires an adjudication 
against a debtor to be made upon petition, whether the rule 
applies at all. But then, if we admit that the rule does apply, 
is it not in itself a sufficient answer to the objection ? Because 
there, " All applications to the Court in the exercise of its primary 
jurisdiction by virtue of the Act, shall (unless herein or in the Act 
otherwise provided, or the Court shall in any particular case 
otherwise permit) be by way of motion supported by affidavit." 

Well, now, if the judge is satisfied and makes the adjudication 
upon a petition without affidavit, it is the strongest proof that he 
has permitted proof of another kind to be used — at all events, 
due or sufficient proof. Upon that point, therefore, I think the 
prisoner can have no advantage from the objection. 

Then I come to the graver objection founded on the 115th 
section which states that " No question put to any insolvent on 
any examination under this Act shall be deemed unlawful by 
reason only that the answer thereto may expose him to punishment 
in respect of some one or more acts or things by this Act made 
punishable as misdemeanors." I do not understand the members 
of the Court who have delivered judgment before me to decide 
that this is an impHed enactment, that any question put to an 



CRIMINAL REPORTS, 1860-1907. /o \^\ \ \ 101 




insolvent in his examination before an examining C^urV wliic& Bi^j^^m. 
would tend to prove that he had been guilty of f elony%(ouJ(J ^e^'s^^yfiilley J. 
unlawful, or that the insolvent could refuse to answer it. 
not understand the members of the Court to have gone so far, 
and I think, that whether the question tended to show that the 
insolvent had been guilty of felony or misdemeanour, he is bound 
under this statute to answer, and the evidence can be used against 
him either for felony or misdemeanour. In considering this 
115th section, we must have regard to the state of the law before 
the enactment, or, rather, to the effects of the other portions of' 
the statute. We must take it to be clear law since the Queen v. 
Scott (1 Dears. & B. 47, 25 L.J. (M.C.) 128), which has been sanc- 
tioned by our highest Court of Appeal — the Privy Council — that 
where a statute requires an insolvent to answer questions touching 
his trade deahngs and property, he must answer, even though the 
answer expose him to a prosecution for felony. There were two 
rules existing at the time this enactment was passed. The first 
was the maxim " that no man should be held to accuse himself," 
and " that he should not be bound to answer any question to 
criminate himself." When the statute required him to answer 
touching his trade and dealings, it removed that privilege. Then 
the effect of the case of the Queen v. Scott {swpra) was, not to go 
further, to hold that the rule of the law of evidence was also 
repealed — namely, that when a man has given his answer it may 
be used in evidence against him. On the contrary, the effect of 
the case is this : — If the answer is given by the force of the 
statute, by the legal obligation of the man, it shall be received in 
evidence against him, unless the statute has itself some express 
enactment to the contrary. Therefore, when the statute com- 
pelled him to answer, it compelled him to answer at his peril. 
If the Legislature had intended that he should have any protec- 
tion, it would have enacted it. But Mr. Blake argued with great 
force that the 115th section, when it enacted that " No question 
put to any insolvent on any examination under this Act shall be 
deemed unlawful by reason only that the answer thereto may 
expose him to punishment in respect of some one or more acts or 
things by this Act made punishable as misdemeanors," impliedly 
enacted that it should be unlawful to ask him any question which 
would expose him to a prosecution for felony. I am unable 
myself, I confess, to give such effect to the plain language of the 
115th section. I cannot suppose it was based upon misconception 
of the Common Law. I rather prefer to hmit it to the extent I 



102 QUEENSL-AND JUSTICE OP THE PEACE, 

E. V. King. shall indicate, to taking the interpretation of the learned Chief 
Lilley J. Justice, that a man may refuse to answer ; — that may possibly 

explain it. In all probabiUty, that was present to the minds of 
the Legislature. Whatever conception you attempt to fix of this 
section, it is by no means satisfactory. It has, no doubt, produced 
considerable doubt in the interpretation of the statute, but it may 
be that in creating a long series of new misdemeanors (I think 
there are twenty-four), entirely the creatures of this statute, that 
the Legislature thought it would be better to make this enact- 
ment ; that although a man might be exposed to a prosecution 
for misdemeanour under the statute, he shall not refuse to answer. 
That may have been present to the minds of the Legislature. It 
is difficult at any time to say what is the actual intention of the 
Legislature, and all we are bound to do is to gather the construc- 
tion from the instruments submitted to our judgment. Well, 
then, we know that the law leans strongly against imphed repeals. 
If there is another rational interpretation to avoid that, it must be 
put upon it. If that be so, the principle holds more strongly 
against implied enactments, because in the absence of that 
express enactment the question itself is not unlawful by the 
common law ; if we take the literal reason of the section, it would 
make any question with that view, or having that tendency, 
unlawful. It would be an extension of the common law by implied 
enactment, because at Common Law the question was not 
unlawful, nor the answer. But the protection he had was this, 
that if it tended to criminate him, he was not bound to answer it. 
But that protection seems to have been removed. Therefore I 
think the conviction must be affirmed. 

Sheppard J. Sheppaed J. : With regard to the first point, I am of opinion 

that on a debtor's petition to be adjudicated an insolvent, it is not 
necessary that the petition should be supported by affidavit. 
Under s. 43, it is on the " presentation of the petition and on 
due proof of presentation," the debtor can be made an insolvent 
on a petition containing an allegation of his inabihty to meet his 
creditors, and that is one of the acts of insolvency set under out 
s. 44. Where the proceedings are adverse, where it is a creditor's 
suit, it is necessary that there should be an affidavit verifying 
the petition ; and where in the latter section liquidation by 
arrangement, which is a non-contentious suit, and the debtor 
has to file a petition, he also has under the rules to make an 
affidavit, and on reference to form No. 89, he does not swear 
to the fact of his being unable to pay his debts, but simply makes 



CRIMINA.L EEPORTS, 1860—1907. 103 

an affidavit as to the most convenient place for his creditors to ^- "• ^™<*- 
meet. Therefore, the principle of the Act is, that in contentious sheppard J. 
suits, the appUcation for adjudication must be supported by 
affidavit, and in non-contentious cases it need not. I do not 
apprehend that r. 38 applies, that speaks of motions, and 
although the learned counsel informed the Court of a similarity 
between petitions and summonses in the Court of Chancery, I 
apprehend it has no appHcation, because under the rules petitions 
are excluded, and even if it did apply, there is authority for 
holding that the Act of the Legislature must prevail over the 
rules. Lord Chief Justice James says : — " The Act of Parlia- 
ment is framed, and the rule must be interpreted by it, and that 
rules must give way to the plain terms of the Act." Here the 
plain terms of the Act are, that on an application for adjudication, 
the petition is to be filed, and on proof of that, which would be 
furnished by the endorsement of the Registrar on the petition, 
adjudication is made. Therefore, I think that point must fail. 
With regard to the other question, no doubt it is a matter of 
very great difficulty, and I would refer to the previous Acts of 
Council and of the Legislature, which deal with the examination 
of insolvents, and what questions they were bound to answer, 
and what they were permitted to refuse to answer. Under the 
old Insolvency Act of the Colony of New South Wales (5 Vic, 
No. 17), the insolvent was compelled to answer all questions that 
tended to the discovery of his property or estate, and there was 
no privilege allowed him. That does not appear to have been 
a satisfactory state of law, and it was altered by the 7 Vic, No. 19. 
By s. 22, it is enacted " That if any insolvent under examination 
before the Court or Commissioner shall refuse to answer any 
lawful question put to him, he may be committed to prison 
until he shall submit to make such answer. Be it enacted that 
after the passing of this Act no question put to an insolvent 
on any such occasion shall be deemed unlawful by reason only 
that the answer thereto may expose him to punishment under 
this Act. Provided that no such examination or any answer 
thereto shall be admissible in evidence against such insolvent 
(other than on a prosecution against him for perjury) except 
for the purposes of this Act only." Then 19 Vic, No. 33, says, 
" Provided however that no examination or answer of the person 
charged with any indictable ojEfence under the provisions of the 
Insolvent Acts in force for the time being shall be admissible . 
in evidence against him on the trial of any indictment other than 



lOi QUEENSLAND JUSTICE OF THE PEACE. 

R. V. King. a prosecution against him for perjury." So that before The 
SheppaxdJ. Insolvency Act of 1864, the law was, that an insolvent should 
give full discovery, but that his answer could not be used against 
him on the trial of any other indictment other than perjury. The 
Act of 1864 was drawn from the English Act passed in the 12th 
and 13th Vic, and that also enacted that fuU discovery should 
be made, and it was held to take away from the insolvent the 
right to object to any question, although the answer might tend 
to convict him. That was the law down to Begina v. Scott (sv/pra). 
But it seems to me that it must be remembered that that was a 
decision the correctness of which was very much canvassed. 
It is disapproved by Mr. Greaves in his " Russell on Crimes," 
and was dissented from by one of the Judges forming the Court, 
and it was strongly disapproved by Sir Fitzroy Kelly in a late 
case, and also to a certain extent by Sir A. Cockburn. So that 
although the law had been settled in that way, there had been all 
these discussions on the matter. Then the Act of 1874 begins, 
and it is necessary to ascertain what the Legislature intended 
by the words used in the Act, and it must be remembered that 
they were deahng with the necessity of having a fuU discovery 
of the insolvent's property and estate, and also that there was 
a maxim of the Common Law that a man should not be compelled 
to accuse himself. That being the state of the case, ss. 114, 
115, and 116 of the Act are passed. Section 114 is for the purpose 
of bringing the insolvent before the Court and for the discovery 
of documents. Then, before enacting to what extent the insolvent 
is to be examined, s. 115 is put in : — " No question put to any 
insolvent on any examination under this Act shall be deemed 
unlawful by reason only that the answer thereto may expose 
him to punishment in respect of some one or more acts or things 
by this Act made punishable as misdemeanors." Section 116 
gives the right to the Court to examine the insolvent. It seems 
to me impossible to hold that the Legislature, under s. 115, did 
not intend to draw a distinction between misdemeanors and 
felonies, and that when they say that no question put to the 
insolvent shall be deemed unlawful by reason only that the answer 
thereto may expose him to punishment in respect of some one cfr 
more acts or things by this Act made punishable as misdemeanors, 
it seems to me that they must have intended to take into con- 
sideration the doubt there was in the law before, that in the case 
, of felony he should not be compelled to accuse himself. But I 
do not think that it means that the question itself is to be unlawful, 



CEIMINAL REPORTS, 1860—1907. 



103 



that is to say, that the Judge is to interfere and say that a question 
which may relate to the discovery of the deahngs of the insolvent, 
and may also lead to a prosecution for felony, that he is to say, 
" I cannot allow that question to be put." An unlawful question, 
in the ordinary sense of the term, is one that the Judge says cannot 
be put in law. So that in my opinion the result is, that when a 
question is put to an insolvent which in some way may expose 
him to the punishment for felony, and which may be given in 
evidence against him on a charge of felony under the Act, that he 
has the right to demur to the question and refuse to answer it. 
In this case the objection was not made, and inasmuch as the 
objection was not made, the case of Regina v. Sloggett (1 Dears. 
656) is an authority, and, therefore, the question having been 
answered without objection, it appears to me that it was properly 
received, and, consequently, the conviction must be affirmed. 

Conviction affirmed. 

Solicitor for prisoner : A. J. Thynne. 

Solicitor for prosecution : TAe Crown Solicitor (Robert Little). 



R. V. KiNd. 
Sheppard J. 



[In Banco.] 

R. V. DODWELL. 

L4 S.C.R. 171 ; 1 Q.L.R. Pt. I., p. 84.— Note.— See also s. 641 of Criminal Code. 
Case referred to in R. v. Highfield (5 S.C.R. at 188, post).] 

Public servant — Misappropriation of money — Evidence — The Audit 
Act of 1874 (38 Vic, No. 12), s. 49.* 

A public servant may be conYicted for misapplying moneys which have come 
into his possession for or on account of the Consolidated Revenue, notwithstanding 
that it was not his duty to receive such moneys, and it is not necessary to a 
conviction that the Government should have had any further claim or title to 
such moneys beyond the right to deal in account with them. 

Per Sheppard J. ; The Crown must prove that the Government had a special 
or general property in the moneys upon receipt thereof by the prisoner. 

Cbown Case Rbseevbd by Mr. Deputy Judge Hely. 

G. W. DodweU was tried before me at the last sittings of the 
Western District Court, holden at Warwick on the 26th of October, 
A.D. 1875, under the 49th section of The Audit Act, for that he, being 



a7th, 



1876. 
38th April. 



Cockle G.J. 
Lutwyche J. 
Lilley J. 
Sheppard J. 



* Repealed— -S<e Criminal Code, ss. 398 (V.), 641. 



106 QUEENSLAND JUSTICE OF THE PEACE. 

R. V. DoDWELL. in the Public Service, did misapply certain moneys whick had 
come into his possession on account of the ConsoUdated Revenue. 

The evidence adduced before me as Deputy Judge in the trial, 
so far as relates to the question I have to submit to the Court of 
Criminal Appeal, was as follows : — 

In June, 1875, prisoner held the situation of Clerk of Petty 
Sessions at Warwick, and on the 29th of that month, E. B. Douyere,. 
a pubhcan residing in that town, saw the prisoner, asked him to 
forward her publican's Ucense fee to the Treasury, and for that 
purpose handed to him the sum of £30 in bank notes, which 
prisoner received from her, and for which he gave her a receipt, 
which was produced and put in evidence at the trial. Prisoner 
was to get a bank draft for the above amount, and send it down 
to the Treasury for her, she at the same time handing him the 
price of the draft. 

Douyere never got that money nor any part thereof back from 
the prisoner. 

r. 0. Darvall was then called, and proved that he was Revenue 
Clerk in the Treasury ; that it was his duty to receive all Govern- 
ment moneys on account of the Consohdated Revenue ; and 
that the prisoner had been in the habit of sending money down 
to the Treasury for pubUcans' licenses ; that he (prisoner) was 
not bound to receive general hcense fees, but if he did receive 
them he should forward them to the Treasury immediately ; that 
he (witness) had never received any credit for the hcense fee of 
Mrs. E. B. Douyere ; that no person was appointed to receive 
Hcense fees — they are bound to be paid into the Treasury ; that 
Mrs. Douyere's had not been paid into the Treasury ; that it 
could not have been paid in without his knowledge, and that it 
still remained unpaid. 

Edward Boyd CuUen, Chief Clerk in the Treasury, proved that 
it was his duty to open all letters addressed to the Under Secretary 
of the Treasury, and should there be any remittances therein, 
to hand them to the Revenue Clerk ; that he (witness) knew 
prisoner, and that he never received a remittance from him on 
account of Mrs. E. B. Douyere. 

At the conclusion of the case for the prosecution, prisoner's 
counsel objected that there was no case to go to the jury, as there 
was no evidence to show that the money received by prisoner was 
received on account of the Consolidated Revenue of the colony. 

I overruled the objection, and left the case to the jury, who 
found the prisoner guilty. I passed judgment on him, and he 
is now in gaol. 



CRIMINAL REPOETS, 1860—1907. 



107 



Upon the application of counsel for the prisoner, I consented to ^- '"■ Dodweli,. 
reserve for the opinion of the Court the questions : " Whether, 
upon the facts stated, I was right in leaving the case to the Jury, 
and whether the prisoner was properly convicted ? " 

Real, for prisoner. The money was received not in the capacity 
of a servant of the Government, but as agent for the prosecutrix 
for the purpose of obtaining her license from the Treasury, he 
not being an officer appointed for receiving license fees on account 
of the Consolidated Revenue. R. v. Beaumont (Dears. 270), 
R. V. Thorp (Dears. & B. 562, 27 L.J. (M.C.) 764). 

Griffith A.G., for the Crown. 

Cockle C.J. : In this case, the question reserved for our Coekle C.J. 
decision is, " Whether, upon the facts stated, there was a case 
for the jury ? " Now, the prisoner was charged for that he being 
in the public service, did misapply certain moneys which had ' 

come into his possession on account of the Consolidated Revenue. 
Now, money did come into his possession — on what account ? 
It was his duty to receive all Government moneys on account 
of the Consolidated Revenue. He had been in the habit of 
sending money down to the Treasury for publicans' licenses, 
although not actually bound to receive general license fees. 
Then, according to his own statement in the receipt, the money 
was " received on account of the Public Service of Queensland 
for a pubHcan's License." Accompanying that with the fact that 
it was his duty to receive money on account of the Consolidated 
Revenue, I apprehend that the inference is that this money came 
into his possession on account of the Consolidated Revenue. 
It is possible — though that probably would depend upon whether 
or not a certificate from the Bench had been lodged at the Treasury, 
or whether or not other proceedings had taken place at the 
Treasury — it may be presumed that under certain circumstances 
Mrs. Douyere could have countermanded the purpose for which 
the money was lodged. There is no evidence whatever that she 
did so ; and as against all the world, except Mrs. Douyere, and 
possibly even as against her, the authorities at the Treasury 
had the right to the possession of this money. That being so, 
I think all the facts necessary to sustain the information under 
the 49th section of The Audit Act seem to have existed, and, 
all events to have been found by the jury ; and, consequently, 
that the conviction must be affirmed. 

Lftwyche J. : The sole point reserved for the consideration Lutwyohe J. 



108 



QUEENSLAND JUSTICE OP THE PEACE. 



U. V. DODWELL. 

Lutwyohe J. 



Lilley J. 



of the Court in this case is : — " Whether, upon the facts stated, 
I was right in leaving the case to the jury, and whether the 
prisoner was properly convicted ? Well, I think upon the facts 
stated that the learned Judge was quite right in leaving the case 
to the jury, and that the prisoner was properly convicted. The 
propriety of the conviction rests upon circumstances which have 
just been stated by the Chief Justice, and upon the fact which 
seems to me to have been perfectly established, that the money 
was received on account of the Consolidated Revenue. The Act, 
which appears to have been very carefully framed, and especially 
this section of it, seems to have been intended to prevent persons 
in the Public Service, who received pubUc money, from appro- 
priating it to their own use, whether it is their duty to receive 
the money or not. It may be part of their duty to receive money 
for the particular purpose for which it is lodged in their hands, 
but on the other hand it may not ; but the section apphes to all 
persons in the Public Service who obtain possession or control 
of moneys on account of the Consolidated Revenue. Then, if 
any person in the Public Service receives money to be applied to 
the Public Service, and therefore forms necessarily a part of the 
Consolidated Revenue when it reaches the Treasury, he, under 
the terms of this section, appears to be subject to the penalty 
contained in it. Now, it is quite clear that Dodwell was in 
the PubHc Service ; he was clerk of petty sessions at Warwick ; 
the money came into his possession from Mrs. Douyere, and it was 
her money, in my opinion, until it reached the Treasury. It 
is not necessary, however, to state whose property the money 
was ; it is sufficient that it shall be shown that it is money, and 
that it came into the possession of a public servant for and on 
account of the Consolidated Revenue. That appears to me to 
have been perfectly established, and, therefore, I think that this 
conviction was perfectly right, and ought to be affirmed. 

Lilley J. : I have but very few words to add to the judgments 
already delivered. It seems to me that the plain meaning of the 
section is, that if anyone being in the Public Service receives 
money with which the Government would have a right to deal in 
account in any way, although it might not ultimately be entitled 
to keep the money, if a person receives money under these 
circumstances and misapplies it, he is guilty of the offence. I 
think the main question is — " Was he in the Public Service, and 
did he receive the money on account of the • Consolidated 
Revenue ? " or, in other words, " Did he receive money with 



CRIMINAL REPORTS, 1860—1907. 



109 



which the Government had a right to deal or to have the immediate 
possession ? " — and that appears to me to be the whole meaning 
of the Act. In this case, the facts are clear enough — he received 
the money on account of the Public Service, and that fact being 
left to the jury, they have found that it was received on account 
of the Consolidated Revenue. It seems clear that Mrs. Douyere 
paid her money in order to obtain some Ucense which had been 
already granted under The Publicans Act. The Government, 
therefore, had a clear right to deal with the money, and whether 
they might deal with it in the way of retaining it and granting 
the license, or in refusing to issue the license and returning the 
money to her, was a matter with which the prisoner had nothing 
to do. I think, therefore, that the conviction must be affirmed. 

Sheppabd J. : The prisoner in this case is indicted under the 
49th section of The Audit Act for misapplying certain moneys 
which had come into his possession on account of the Consolidated 
Revenue, he being a person employed in the Public Service. It 
appears to me that it is necessary to establish that the money 
which is received by a pubUc officer is m.oney which by the receipt 
becomes either the special or the general property of the Govern- 
ment. That is analogous to embezzlement, and it is clear, that 
although, since the alteration of the law it is not necessary to 
show that the money is received by the servant in virtue of his 
employment, still it is necessary to establish that the money 
received is the property of the master ; that is to say, that he has 
either a special or a general property in that money. There is a 
late authority for that in the Queen v. Gullen (L.R. 2 C.C.R. 28). 
Here it appears to me the question is — Whether, when the prisoner 
being in the Public Service received this money, the Government — 
the Crown — had a special or general property in it ; that is to 
say, supposing some other officer of the Government had come 
to the Clerk of Petty Sessions directly this money was received, 
and said, " Now hand this money over to me." If he had the 
right to do that, it appears to me that the Crown had a special 
property in the money. It might turn out afterwards that if the 
license fee had been paid by the agent of Mrs. Douyere in Brisbane, 
the money would have to be returned, but if they had a special 
property in the money, then the prisoner was, it seems to me, 
properly convicted. Now there were two states of circum- 
stances laid before the jury — one, the case argued by the learned 
counsel for the prisoner, where it appeared that the money was 
paid to the prisoner for the purpose, and for the purpose only, of 



R. V. DOBWELL. 



LiUey J. 



Sheppard J. 



110 



QUEENSLAND JUSTICE OF THE PEACE. 



E. V. DoDWELL. getting a draft, and sending that draft down to the Treasury. 
Sheppard J. It appears now, from the receipt, that he acknowledges not to 
have received it on behalf of Mrs. Douyere, but on behaK of the 
Public Service. The obtaining the draft was merely the course 
of transmitting the money to the Treasury. It therefore seems 
that directly he received it on behalf of the PubUc Service, as 
stated in the receipt, that the officers of the Revenue had a right 
to its immediate possession, and having that right they had that 
special property which it appears to me they must have, for it to 
form a portion and to be received on account of the Consolidated 
Revenue. These facts, whether he received it on behalf of Mrs. 
Douyere, on whether he received it on behalf of the Consolidated 
Revenue, were left to the jury, and they have found that the 
received it on behalf of the revenue. I am therefore of opinion 
that the conviction must be affirmed. 

Conviction affirmed. 

Solicitors for the prisoner : Thompson & Hellicar. 

Solicitor for the Crown : The Crown Solicitor (Robert Little). 



1877. 
13th November. 

Cockle C.J. 
Lutioyche J. 
Lilley J. 



[In Banco.] 

In re HAUGHTON. 

[5 S.C.B. 53 ; 1 Q.L.R. Pt. 11., p. 53 Note.— See also Emmerson v. Clarke, 3 

S.C.R. 76, ante p. 71 ; Millis v. Kiefer, 10 Q.L.J. 142, post ; Clifford v. White, 
4 Q.J.P.R. 132 ; 1910 S.R.Q. 364.] 

Illegally losing cattle — Prohibition — 17 Vic, No. 3, s. 6.* 

In order to support a conviction under s. 6 of 17 Vic, No. 3, for illegally using 
an animal, it must be shown that the animal was used for the profit, convenience, 
or pleasure of the party using it. 

Motion to make absolute a rule nisi calhng upon Thomas John 
Sadlier, P.M., Tambo, and Maurice Solomon to show cause why a 
prohibition should not issue restraining them from further pro- 
ceeding in respect of a conviction against George Haughton for 
illegally taking and using a horse, upon the grounds : (1) That the 
magistrate acted ultra vires in admitting evidence given in another 
case ; and (2) that there was no evidence to support the con- 
viction, or, in other words, that there was no evidence of using 
on the part of Haughton. 



* See Criminal Code, s. 445. 



CRIMINAL REPORTS, 1860—1907. Ill 

Haughton and a man named Lacy were originally charged ■^" '■" Haoghton. 
before the Police Magistrate with stealing the horse in question. 
After several witnesses had been examined this charge was with- 
drawn, and one for illegally using substituted. The depositions 
previously taken were read over and accepted as evidence against 
the defendants, no objection being taken by him. The evidence 
was again sworn to, and an opportunity of cross-examination 
allowed. 

Haughton was sentenced to six months' imprisonment with 
hard labour. 

The facts appear in the judgment. 

Garrick, for Haughton, moved the rule absolute. 

Griffith A.G., for the Crown, in support of the conviction. 

LuTWYCHE J. deUvered the judgment of the Court. Lutwyohe J. 

In this case, as we are all agreed upon the second ground on 
which the rule was obtained, it will not be necessary for me to 
say anything about the first. With regard to the second ground 
of the objection to the conviction, which is that there was no 
evidence to support the conviction, I think that, after the very 
careful investigation that the Court has made of the evidence, 
that the learned counsel, Mr. Garrick, who appeared on behalf 
of the prisoner Haughton, is right. To support a conviction 
for illegally using an animal under s. 6 of 17 Vic, No. 3, it must 
appear the animal was used for the profit, convenience, or pleasure 
of the party using it — that was the definition which I gave in 
my construction of the meaning of the statute in the case of 
Emmerson v. Clarke (3 S.C.R. 76). Now, in this case I am unable 
to see that there is any evidence to show that Haughton used 
the mare in question for his own profit, pleasure, or convenience. 
So far as I have been able to form a judgment on the facts of the 
case, the animal was at one time in the course of the present year 
the property of Haughton. It was sold by him to Lacy, it 
appears, in this way, that he gave Lacy the right to sell any 
horses belonging to him. Then it appears^ that, in April of the 
present year. Lacy sold a number of horses, which had been 
running the mail on the Charleville line, to Solomon and Bredhauer. 
This mare in question was, as late as July of the present year, 
running at large, and a day or two afterwards was, by the order 
of Haughton, driven by Wilhams to his place at Nive. A week 
"after that he, accompanied by Lacy, came to the paddock and 
assisted him in catching the mare, which was then mounted by 



112 



QUEENSLAND JUSTICE OP THE PEACE. 



In re Hatjghton. Williams. But there is no evidence in the case from which it can 
Lutwyohe J. possibly be inferred that Haughton was aware of the sale by 
Lacy to Solomon and his partner of the animal in question. 
Then, if Haughton did not know of the sale to Solomon, but 
was aware that he had given Lacy authority to sell any horse 
belonging to him, he might, and no doubt did, reasonably infer 
that Lacy was desirous of selling this mare which was included 
in the terms of the contract between himself and Lacy, and it 
seems to me to be a very natural course of conduct for him to 
tell Lacy where the mare was, to point her out, to assist in catch- 
ing her, and let her be used by the owner. Therefore he cannot 
be said to have illegally used the mare, not having done so for 
his own profit, convenience, or pleasure. Therefore I think the 
conviction must be quashed. 

Bide absolute. 

Solicitor for the Crown : The Crown Solicitor. 

SoUcitors for George Haughton : Daly <fe Abbott. 



1880. 
19th March. 

Lilley C.J. 
Lutwyche J. 
Hardivg J. 



[Full Court.] 

E. V. WELLS. 

[5 S.C.R. 181 ; 7 Q.L.J. N.C. 105.— Note.— 29 Vic, No. 6, repealed.] 

Criminal law — Crown case reserved— Error — Larceny Act of 1865 
(29 Vic, No. 6), s. 44* — Bobbery under arms — Wounding. 

To support a conviction under a. 64 of the Larceny Act of 1865 (29 Vic, No. 
6), it is not necessary that the wounding and robbery should be committed on the 
same person. 

On a. Crown case reserved, counsel are not allowed to refer to matteis outside 
the case as stated. 

Ceown Case Reserved by Lilley C.J. 

Joseph Wells was tried at Toowoomba for robbery under arms 
and wounding. The information was laid under s. 44 of the 
Larceny Act (29 Vic, No. 6), and in the first count alleged that, 
on the 26th of January, 1880, the prisoner, at CunnamuUa, bemg 
then armed with a loaded revolver, " in and upon one Joseph 
Berry, feloniously did make an assault ; and him, the said Joseph 
Berry, in bodily fear and danger of his fife feloniously did put, 
and certain money . . . the property of the said Joseph 



See Criminal Code, s. 411. 



CRIMINAL REPORTS, 1860-t1907. 113 

Berry, from the person, in the presence and against the will of ^^- "• Wells. 
the said Joseph Berry, feloniously and violently did steal, take, 
and carry away. And the said Joseph Wells, immediately after 
he robbed the said Joseph Berry as aforesaid, did, by discharging 
said pistol so loaded as aforesaid, one Wilham Murphy feloniously 
and unlawfully wound." The words of the second count followed 
those of the first, except that the money stolen was alleged to be 
that of the corporation of the Queensland National Bank, 
Limited, instead of that of Joseph Berry, as stated in the first 
count. Upon this information the prisoner was found guilty 
and sentenced to death. After sentence, and before it was 
carried into efEect, application was made to the Chief Justice 
to state a special case for the opinion of the Full Court, which 
he did as follows : — The following matters alleged to be errors on 
the record have been submitted to me, and I have been requested 
to solicit the opinion of the Supreme Court thereon. The matters 
are apparent on the information, and, of course, arose before me 
at the trial. They are as follows : — (1) That the first count of 
the information is bad, because it charges the prisoner Joseph 
WeUs with having feloniously made an assault upon one Joseph 
Berry, and with having put the said Joseph Berry in bodily fear 
and danger of his life, and with having feloniously and violently 
stolen certain property of the said Joseph Berry, and with 
having, immediately after he so robbed the said Joseph Berry 
as aforesaid, feloniously and unlawfully wounded one William 
Murphy. (2) The second count is bad, because it charges the 
prisoner (as in the first count), and with having . . . stolen 
certain property of the corporation of the Queensland National 
Bank, Limited, from the person, and in the presence, and against 
the will of the said Joseph Berry, and with having immediately 
after (as in the first count). (3) That the prisoner was im- 
properly indicted under s. 44 of the Larceny Act of 1865. (4) That 
the Queensland National Bank, Limited, is not a "person" 
within the meaning of s. 44 of that Act. (5) That both counts of 
the indictment are bad for duplicity in stating two offences in the 
one count. (6) That the indictment and the matter contained 
therein are not sufficient in law to warrant the judgment against the 
said Joseph Wells, (7) That a general judgment having been 
given on the whole indictment, one count at least of which was bad 
in substance, the judgment ought to be reversed. The question 
is. Are all or any of the matters errors in law ? I submit them, 
therefore, to the Court in virtue of my powers of the statute." 



114 QUEENSLAND JUSTICE OF THE PEACE. 

E. V. Wells Garrick (with him Chvbb and Sutledge), for the prisoner, asked 

how many counsel the Court would hear on behalf of the prisoner. 
LiLLEY C.J. : In matters of error, only one is usually heard on 
each side. The Court will hear the whole number if they wish. 

Lille Y C.J. : There was a verdict on both counts, and a 
general judgment was given. This must be treated as a matter 
of error. 

Garrick asked whether it was open to the prisoner's counsel to 
refer to anything beyond the indictment. 

Haeding J. : My feeling is that they should be allowed to argue 
anything that was tenable. If it were shown there was error, it 
could be rectified on the special case. 

LuTWYCHE J. : The Court has never allowed counsel to travel 
outside the special case as stated. 

LiLLEY C.J. : The constitutional tribunal has disposed of all 
matters of fact. The Court must deal with the information and 
say whether the law allowed the Attorney-General to file it, and 
whether it was sufficient. 

Garrick : The objection to the first count is the robbing of one 
person and the wounding of another. The prisoner's contention 
is that they must be of the same person. (29 Vic, No. 6, ss. 44, 48 ; 
24 and 25 Vic, c 96, s. 43). The intention was that where there 
was robbery, death should be inflicted when the person robbed was 
wounded. (R. v. Thomas, 1 Leach 330.) As to the second 
count, the property is laid in the Bank. (R. v. Rudick, 8 C. & P. 
237.) As to error, Gregory v. Regina, 15 Q.B. 957 ; Holloway 
V. Regina, 17 Q.B. 317, were cited ; Dwarris, 635. 

Chubb and Rutledge followed. 

Pring A.G. and Griffith Q.C., for the Crown, cited, as to error, 
O'Connell v. Reg., 1 Cox 531 ; Nash v. Reg., 33 L.J.M.C. 94. 
Where the crime is capital, no difference how many counts, there 
is no other punishment. The offence is compounded of two 
other offences. (7 Wm. IV. and 1 Vic, c 87 ; 7 and 8 Geo. IV., 
c 29 ; 9 Geo. IV., c 55 ; 2 Russell, 115). The statute should 
have used words showing that the Legislature meant the same 
person. The section was passed to meet the mischief in R. v. 
Thomas {supra). 

Griffith Q.C. followed. 

Lutwydhe J. LuTWYCHE J. : I think it best to confine myself to the pure 

questions of law which arise on the record. The first and most 



CRIMINAL REPORTS, 1860—1907. 



115 



important question is that which was expressed in the first count of 
the indictment, and to say whether there was any error of law 
stated in that, one must look at s. 44 of the Larceny Act of 1865 
and see what its fair meaning is. In looking at a section of 
an Act of Parliament with a view to give it its true construction, 
one must, in the first place, look to the language of the section 
itself, and if that is clear and plain, so that " he who runs may 
read," there will be no occasion to travel further. But if there be 
any ambiguity the Court may with propriety look to other 
sections of the same statute, or to sections of any other statutes 
which are in pari materia. It is an elementary rule, and one 
consistently enforced by the Courts in giving their opinion on 
the meaning of statutes, that where the grammatical meaning 
is plain and clear that should be followed, unless some manifest 
inconvenience, absurdity, or injustice would result. Looking at 
the terms of s. 44, it seems to me that the words are exceedingly 
plain and clear. I consider that the first ingredient in the offence, 
Tvhich was provided for in that section, and which, I beheve, 
was created by it, refers to the intent with which the robbery was 
committed, and that the whole of it refers to an offence com- 
pounded of robbery and wounding, the latter of which might 
be either before or after the robbery. The contention of the 
counsel who have addressed the Court on behalf of the prisoner 
was the word " any," in the latter part of the section, must 
mean " the same." They might, of course. They might be 
confined to the same person who was robbed and wounded ; 
but, as was admitted by one of the counsel, the word " any " 
might embrace a different person from the one who was either 
robbed or wounded ; and it appears to me that is really the 
meaning we are to put upon that part of the statute. I see no 
manifest inconvenience, absurdity, or injustice likely to follow 
from our coming to such a conclusion. On the contrary, I think 
there would be a manifest inconvenience, a manifest absurdity, 
and a manifest injustice from holding the reverse opinion. A case 
I put in course of the argument appears to me in a simple way to 
point out the policy of the Legislature and to assist in explaining 
the meaning of the words which are used in s. 44. Supposing an 
aged and feeble man on a journey, and accompanied by another 
whom he had taken with him for his assistance, were considered 
by an evil-disposed person to be a desirable person to rob, and the 
latter were, in order to effect his purpose, to wound the strong 
man and immediately afterwards rob the other, it seems to me 



E. V. Wells. 
Lutwyohe J. 



116 



QUEENSLAND JUSTICE OF THE PEACE. 



li. c. Wells. 
Lutwyche J. 



Harding J. 



Lilley C.J. 



that the Legislature has very prudently provided for occurrences 
of that kind, and has provided for it in no other part of the statute. 
If the word " any " did not embrace the person who was robbed, 
as well as his companion who was wounded, very great evils 
might result. The Legislature has chosen that the punishment 
for these two offences together shall be much more severe than 
they considered necessary where the robbery and wounding are 
separate, and it seems to me that in passing the Act they proceeded 
with care, circumspection, and astuteness, when they made this 
section refer to more than one case. I am therefore of opinion 
that the first count of the information was good, and that there 
was no error in that count. The second count, as far as I can 
see, only differs from the first in the fact that the property which 
was alleged to have been stolen was laid in the corporation of th© 
Queensland National Bank, Limited, instead of in Berry. To 
make it a good count the property must have been laid in some 
person, and it might well have been either in Berry, as in the 
first count, or in the bank. I can see no error there. The other 
points raised will be more or less decided by the construction the 
Court puts on the first and second objections. It was objected 
that a corporation was not a person, but it was not alleged in 
the information to be such, so that there is nothing in that point. 
Both counts, I think, are good ; and even if one of them were 
bad, as the punishment annexed by the Legislature is the same, 
I think the case of O'Gonnell v. The Queen, which was cited, 
disposes of the matter. Upon the whole, therefore, I am of 
opinion that the judgment ought to be affirmed. 

Habding J. : I think that a Judge has power to state a special 
case, even though the points raised had not been taken at the 
trial. I concur with the views expressed by Lutwyche J. 

Lilley C.J. : I assent entirely to the conclusion at which my 
brother judges have arrived — that there was no error on this 
record, and that the judgment ought to be affirmed. I con- 
sidered the points raised, and directed the jury that it was not 
necessary that the person wounded should be the same person 
who was robbed. I also directed them that there must be an 
immediate connection between the robbery and the wounding, 
that, in fact, the wounding must be either at the beginning for 
the purpose of getting hold of the plunder, or for the purpose 
of securing his escape with the booty. I most carefully directed 
them as to the immediateness, so that the prisoner has not suffered 



CEIMINAL REPORTS, 1860—1907. 



117 



irom the absence of any averment on this point. I also express 
the opinion that s. 44, upon its plain interpretation, is especially 
apphcable to the circumstances of this colony. I think the 
course I have taken in stating a special case is far preferable to a 
writ of error, in which latter event the prisoner would have been 
dragged to the Court to listen to the whole of the argument 
and receive judgment. 

Ltjtwyche J. : I am in favour of the course taken. 

Conviction affirmed. 
Solicitor for prisoner : Bunton. 



B. V, WeI/LS. 
Lilley C.J. 



[PtTLL CotTET.] 

R. V. HIGHFIELD. 
[5 S.C.R. 186 — Note.— See alsb ss. 391 and 39SV of Criminal Code.] 

Criminal law — Misapplication of moneys by pvblic servant — Audit 
Act of 1874 (38 Vic, No. 12), s. 49*. 

On an information under s. 49 of The Audit Ad of 1874 it is not necessary to 
prove tliat tlie misapplication of public money was fraudulent, or that it was 
misapplied or improperly disposed of with any intent whatever. 

Crown Case Reseeved by Lutwyche J. 

Wm. Highfield was tried before me at the last Criminal Sittings 
■of the Supreme Court, held at Brisbane, under s. 49 of The Audit 
Act of 1874, for that, while he was employed in the pubhc service 
as Engineer of Waterworks, a certain sum of money amounting to 
£83 12s. 8d. came into his possession and control by virtue of such 
employment, for the use and benefit of certain other persons, and 
that he feloniously misappUed £67 15s. of the same, contrary to 
the provisions of that statute. A second count in the information 
■charged him with improperly disposing of the same ; and there 
were two other counts charging him with the misapphcation and 
improper disposal of the same, he being a person Uable to account 
for the receipt and expenditure of public moneys. It appeared 
from the evidence given that in November, 1879, the prisoner 
was in the public service as Engineer of Waterworks, and that 
in that month he applied to Edward Deighton, Under Secretary 
of the Department of Works, Brisbane, for authority to draw 
on the Q.N. Bank at Ipswich for the sum of £83 12s. 8d., to meet 



1880. 
6th April. 

Lilley C.J. 
Lutwyche J. 
Harding J. 



* See Criminal Cede, s. 641. 



118 QUDENSLAND JUSTICE OF THE PEACE. 

R. V. H16HFIELD. a corresponding amount due for wages at Warwick for the month 
of October to men employed in the Works Department. Mr. 
Deighton gave the required authority to draw on the Bank, 
and the prisoner drew for the amount, which was placed by the 
Bank to his credit in an account which he then had at the Bank, 
headed " William Highfield's PubUc Account." In the month 
of November the prisoner had no more than that oiie account 
at the Bank, his private account having been closed in October, 
1878. The draft for £83 12s. 8d. drawn by the prisoner was 
presented at the Office of Works, and Mr. Deighton gave his 
official cheque on November 24 in exchange for it, and got a 
disbursement of that sum. On November 19 the prisoner had 
drawn a cheque against the amount placed to his credit at the 
Bank under the authority given by Mr. Deighton. That cheque 
was made specially payable to the order of Mr. Rodgers, who 
was then engineer of the Warwick Waterworks. Mr. Rodgers 
endorsed the cheque, and got it cashed at the Warwick branch 
of the Q.N. Bank, and with the proceeds paid the wages of the 
men in the Works Department, for whose benefit the prisoner 
was authorised to draw on the Q.N. Bank at Ipswich. On 
November 19 the prisoner drew against the same amount two 
cheques to pay private creditors — one for £27 and one for £15 — 
and up to November 28 inclusive he had drawn against the 
amount cheques in favour of his private creditors, aU of which were 
duly paid, amounting to £67 15s. The prisoner's cheque drawn 
to the order of Rodgers was afterwards presented at the Ipswich 
branch of the Bank and came back dishonoured, and at the time 
of the trial stood to the debit of Rodgers in the books of the 
Warwick branch. The prisoner had no authority from the 
Government to open a pubhc account at any bank, and never 
accounted in any way for the application of the money which 
had been placed to his credit. In summing up I directed the jury 
that it was not enough for the prisoner to show that the person 
for whose benefit the money paid into the prisoner's credit was 
intended had been paid by another person and from a different 
source ; that the offence charged was not embezzlement, but 
was created by the provisions of s. 49 of the Audit Act ; that 
under that statute it was not necessary to prove any felonious 
intent, the act of misappHcation or improper disposal being suffici- 
ent to satisfy the statute ; that upon this information they had 
only to be satisfied that by virtue of such employment the sum 
of £83 12s. 8d. came into his possession for the benefit and use of 



CRIMINAL EEPORTS, 1860—1907. 



119 



other persons, and that while it was in his possession he unlawfully ^- '"■ Hiohoteld. 

misapplied or improperly disposed of a portion of it. Mr. Chubb, 

who defended the prisoner, objected to my direction, and at 

his request I reserve for the consideration of the Full Court the 

following question : — " Was I right or wrong in my direction 

to the jury on the matters of law contained in it ? " The prisoner 

was convicted and sentenced to imprisonment, with hard labour, 

in Brisbane Gaol, where he now remains. 

Chubb, for the prisoner : There must be a fraudulent mis- 
apphcation. In ss. 75, 76, 77 of The Larceny Act of 1865 (29 
Vic, No. 6), the word " fraudulent " is used. 

Griffith Q.C., for the Crown, cited B. v. Wynn, 1 Den. 365. 

Ltjtwyche J. mentioned B. v. Dodwell, 4 S.C.R. 171. 

Habding J. mentioned B. v. Prince, L.R. 2 C.C.R. 154. 



LiLLEY C.J. : The Court is of opinion that it is unnecessary to 
allege that the misapplication was fraudulent, or that it was mis- 
apphed or improperly disposed of with any intent whatever. 

Conviction affirmed. 

Solicitor for prisoner : C. F. Chubb. 



Lilley C.J. 



[Full Cottkt.] 

R. V. GOMEZ. 

[5 S.C.R. 189.] 

Criminal law — Jurisdiction — Torres Straits — Annexation of Islands 
—18 and 19 Vic, c. 54, s. 46—24 and 25 Vic, s. 44—43 Vic, 
No. 1, s. 1 — Prerogative of the Crown — Letters Patent — Murder. 

The Supreme Court has jurisdiction over islands in Torres Straits included in 
the area described in the Schedule to 43 Vic, No. 1, annexed pursuant to Letters 
Patent issued by Her Majesty in 1872 and 1878, and the proclamation in the 
Goitrnment Gazette of 21st July, 1879. 

Cbown Case Resbbved by Sheppard J. 

Maximo Gomez, alias Pedro, was tried at Cooktown on the 30th 
April for the murder of William Clarke at Possession Island on the 
24th December, 1879. The jury found the prisoner guilty, and 
sentence of death was passed upon him, but the sentence was 
respited, certain points of law being reserved. The island where 
the offence was committed was situated, according to the evidence 



1880-. 
1st June. 

Lilley C.J. 
Harding J. 



120 QUEENSLAND JUSTICE OP THE PEACE. 

B. V. Gomez. of a witness, in Torres Straits, and was distant about a mile aad 
a-half from the mainland. It appeared to the learned judge that 
the jurisdiction of the Court depended on (1) the vaUdity of the 
Letters Patent issued by Her Majesty the Queen, dated 10th 
October, 1878 (upon which The Queensland Coast Islands Act of 
1879 was founded), and (2) whether the islands, being situate 
within a marine league of the mainland of AustraUa, the Court 
had jurisdiction to try the prisoner independently of the Letters 
Patent, the Act of Parliament 43 Vic, No. 1, and the subsequent 
proclamation of His Excellency the Governor published in the 
Government Gazette of 21st July, 1879. His Honor stated in the 
case that s. 2 of 3 and 4 Vic, 62, gave power to Her Majesty by 
Letters Patent to erect into a separate colony, or colonies, any 
islands which were, or which thereafter might be, comprised 
within, and dependencies of the colony of New South Wales. 
By s. 7 of 18 and 19 Vic, c. 54, Her Majesty had also power to 
erect into a separate colony or colonies any territories which 
might be separated from New South Wales by alteration of the 
northern boundary thereof ; and by s. 2 of 24 and 25 Vic, c. 44, 
she could, by Letters Patent, annex to any colony on the conti- 
nent of Australia any territories which in the exercise of the 
powers therein mentioned might have been erected into a separate 
colony. The difficulty which his Honour felt was as to the legal 
effect of the Letters Patent of 10th October, 1878. The islands 
in Torres Straits lying between the continent of Australia and 
the island of New Guinea were never dependencies of or reputed 
to be within the colony of New South Wales, and there was no 
Imperial Act giving power to Her Majesty to annex to this colony 
any islands which were not dependencies of New South Wales. 
He was not aware that the islands in Torres Straits had ever been 
taken possession of on behalf of the British Crown, nor did the 
Letters Patent recite that such possession had been taken ; and 
it appeared to him that as the boundaries had been defined by 
Acts of the Imperial Parliament, or under their authority, those 
boundaries could only be altered by an Act of the Imperial 
Parliament or by the exercise of some power conferred by the 
same authority. The question for the decision of the Court was 
whether, under the circumstances, the Circuit Court at Cooktown 
had jurisdiction to try the prisoner. 

Pring, A.G., for the Crown, referred to the Proclamation, 22nd 
August, 1872, in 13 Government Gazette 1324, based on Letters 
Patent, dated 30th May, 1872, with regard to islands within 



CRIMINAL REPORTS, 1860—1907. 121 

sixty miles off the coast ; Letters Patent, 10th October, 1878 ; B- "• Gomez. 
Proclamation, 21st July, 1879 ; 43 Vic, No. 1. 

HAKDrsfG J., referred to 18 and 19 Vic, c 54, s. 46 (1 Pring 230.) 

Griffith Q.C. for the prisoner, referred to the Letters Patent of 
1862 (1 Pring 234), 3 and 4 Wm. IV., c 62 (1 Pring 189) ; and 
submitted the questions to be considered were (1) whether the 
island in question was affected by the Letters Patent of 1872 
(ante) ; and (2) whether the boundaries of the colony should be 
altered by Act or prerogative. (Chitty on Prerogative, p. 29 ; 
R. V. Jimmy, 4 S.C.R. 130 ; Damodhar Gordham v. Deoram Kanji, 
1 App. Gas. 332.) 

LiLLEY C.J. : The matter appears to me to be perfectly clear Lillej C.J. 
and I should be very sorry for it to go forth that there is any 
doubt as to the jurisdiction of the courts of the colony over the 
islands annexed to the colony by the Letters Patent of 1872 and 
1878. It might be taken as a conclusion of fact that these islands, 
up to the time Her Majesty assumeddominion over them, were 
not under the dominion of any other power, nor within the ter- 
ritories of any of the AustraHan colonies ; that, in fact, they were 
islands which Her Majesty had power and was free to exercise 
diminion over. Nothing can be clearer from a long chain of 
history and practice that the Queen has the prerogative, by 
Letters Patent, to erect unoccupied lands into colonies. She 
may revoke those Letters Patent, or extend or Hmit the juris- 
diction of the colony so erected; in fact, she has absolute power to 
alter in any way the limit of the colony. These islands are in 
that condition. Her Majesty had power to assume control over 
them. She has done so, and it is not a matter which the Court is 
at liberty to dispute that in issuing these Letters Patent she has 
assumed lawful dominion over the islands therein mentioned. 
The only question as to the vaHdity of the proceeding appears to 
be this : Can Her Majesty, without the assent of the Legislature, 
annex these lands to an existing colony with representative 
institutions ? Caution had been observed in the matter, and the 
islands were not annexed without the consent of the Queensland 
Legislature. The last of the Letters Patent, at all events, were 
issued upon the condition that a statute should be passed by the 
colonial Legislature. Her Majesty's assumption of dominion is 
perfeclty clear. In 1872 she created the Governor of this colony 
the Governor of these islands, making provision at the same time 
for becoming a part of the territory of the colony. The islands 



122 



QUEENSLAND JUSTICE OF THE PEACE. 



E. V. Gomez. are therefore within the colony of Queensland, subject to the 
LilieyC.J, jurisdiction of the Supreme Court of this colony, and the con- 
viction must be upheld. 

Harding J. Haeding J. : From the statutes cited it is seen that power had 

been given to annex certain islands ; but we find nothing enacted 
which would pervent Her Majesty adding other islands to a 
colony with the assent of the local Legislature. Under these 
circumstances it appears to me that Her Majesty had the power 
to annex these islands, and that that power has been properly 
exercised. I do not find it necessary for the purposes of the 
present decision to deal with the other point in the case. I con- 
cur with the Chief Justice in the formal judgment he has dehverd. 

Conviction affirmed. 



1881. 
10th May. 



[Full Cotjet.] 

REGINA V. CORVIE AND LESNINI. 

[1 Q.L.J. 1.— Note.— 31 Vic, No. 13, s. 65 is repealed. See now Justices Act 

of 1886, s. 11.] 

Caption — Admissibility of Depositions — 31 Vict., No. 13, s. 65. 

! To make the depositions of a deceased person admissible as evidence, there 
is no necessity for a general caption. The requirements of the statute, 31 Vic, 
No. 13, s. 65, may be shown to have been complied with, from the whole 
depositions. 

The facts of this case are briefly these : — 

The prisoners, Corvie and Lesnini, were charged at Gympie 
in December, 1880, with an ''' attempt to murder " one Grisostolo. 
Grisostolo died in January, 1881, and the prisoners were tried at 
the Maryborough Circuit Court before Mr. Justice Pring in April 
last, for the murder. The principal evidence against the prisoners 
were the depositions of Grisostolo. At the trial, Corvie was 
defended by Tozer (soUcitor), Lesnini, by Murray-Prior. At the 
request of Prior and Tozer, Mr. Justice Pring reserved a case for 
the decision of the Full Court. The depositions were objected to 
as inadmissible evidence, principally, because there was no 
proper caption within the statute. 

The caption was in this form in each case : — 

" Gympie, [25th] 30th December, 1880. 
(Before J. Farrelly, J.P.) 

Augustus Corvie, [Stephano Lesnini] charged with an attempt 



CRIMINAL REPORTS, 1860-1907. 125 

to murder one Celeste Grisostolo." It was proved at the trial Regina «. Cobvie. 

, . ^ AND LeSNINI. 

that Grisostolo was dead — that each prisoner was charged before 

a justice of the peace with having attempted to murder Grisostolo 
— that the deceased Grisostolo on each occasion, gave his evidence 
before a justice of the peace in the presence of the accused — 
that the evidence was taken on oath and that each prisoner ha_d 
opportunity of cross-examination. Mr. Justice Pring admitted 
the depositions against the prisoners, who were found guilty of 
manslaughter, subject to the opinion of the EuU Court as to the 
admissibility of the evidence." 

Attorney-General for the Crown. 

Murray Prior argued for Lesnini — and cited Reg. v. Newton, 
1 F. and F. 641 ; Reg. v. Oalvin, 10 Cox C.C. 198. 

The Court decided that the objections raised were not good in 
law ; and that the depositions were rightly admitted. There is 
no necessity that the caption to depositions should be exactly 
similar to the form given under s. 65 of 31 Vict., No. 13 — provided 
it be substantially the same. The requirements of the statute 
may be shown to have been complied with from the whole depo- 
sitions, not merely from the caption. Though thus there is no 
necessity for a general caption, still it is desirable that the forms 
given by the statute should be complied with. That taking the 
depositions from beginning to end, the statute has been comphed 
with. 

Judgment affirmed against both prisoners. 

Solicitor : F. I, Power, Gympie. 



[Maeybokough Ciecuit Court.] 

R. V. KENNEDY AND ROYSTON.) 

[1 Q.L.J. 12.] 

In the case of R. v. Kennedy and Royston, where Kennedy, 1881. 

who was first on the information was undefended, and Royston 28thApi-il. 
was defended by counsel. His Honor held that it was the practice PHng J. 
of this colony, if no witnesses were called for the defence of -either 
prisoner, that the undefended prisoner (in this case Kennedy), 
being first on the information, had the right of first addressing 
the Court and jury. 



124 QUEENSLAND JUSTICE OP THE PEACE. 

[In Chambbes.J 

THE QUEEN v. LOUIS HUSTIN, CALLED LOUIS JOSEPH 

WATIER. 

n Q.L.J. 16 — Note. — See Commonwealth Extradition Act (No. 12 of 1903).] 

1881. 
8th lOih 15th Extradition Acts of 1870 and 1873, and the Extradition Act (Queensland) 1877, 

June. and Extradition Treaty with Eranoe. 

Pring J. On the application of G. E. Markwell, solicitor for Louis Hustin, 

a confinee in Brisbane gaol, made on the 8th June, Pring J., 
granted a writ of habeas corpus, commanding F. R. Bernard, 
keeper of H.M. gaol at Brisbane, to produce the body of Hustin 
in court on the 10th instant. 

On the said 10th day of June, Mr. Bernard having produced 
the body, as commanded, and also the writ . of commitment, 
Markwell moved the discharge of the prisoner on the several 
grounds as contained in the affidavit of Hustin, which are fuUy 
set out in His Honor's judgment infra : — 

Cooper A.G., for the Crown, submitted that under article 16 of 
the treaty, which provides that " the requisition for the surrender 
of a fugitive criminal who has taken refuge in a colony or foreign 
possession of either party, shall he made to the Governor or chief 
authority of such colony or possession ; or if the fugitive has escaped 
from a colony or foreign possession of the party on whose behalf the 
requisition is ynade, by the Governor or chief authority of such colony 
or possession," any of the persons mentioned in the article might 
make the requisition, where the prisoner has escaped from a 
colony ; that if the Governor of the colony was the only person 
who could make the requisition, the words " Escaped from a 
colony " could apply only to cases where the prisoner had been 
sentenced by the local authorities in the colony, otherwise there 
would be no reason why the Governor could alone make the 
requisition. 

As to the vaHdity of the warrant for arrest, he submitted that 
under article 7 of the treaty, and s. 17 (2) of The Extradition Act 
of 1870, the Governor of a British colony has the same power as a 
police magistrate in England has under the Act ; and that there- 
fore when once the prisoner has been arrested under the warrant 
of the Governor and brought before the PoUce Magistrate, he had 
jurisdiction to hear the case ; and further that it was not neces- 
sary that he (the P.M.) should have sufficient evidence that the 
prisoner had been sentenced for the particular crime charged in 
the warrant ; it would be sufficient if he were found to have been 
sentenced for any extraditable offence. 



CEIMINAL REPOETS, 1860-1907. 



125 



Peing J. reserved his decision till the 15th instant, and on that 
day he delivered the following judgemnt : — 

Louis Hustin, called Louis Joseph Watier, was brought before 
me on Friday, the 10th instant, by P. R. Bernard, keeper of Her 
Majesty's goal, Brisbane, in obedience to a writ of habeas corpus, 
ordered by me on the 8th instant to be issued on the application 
of Mr. G. Markwell for the confinee, which writ was made return- 
able before myself. Mr. Bernard handed in the writ and the 
return which I ordered to be filed. The return was a warrant of 
committal of Louis Joseph Watier, under the hand and seal of 
Phihp Pinnock, Police Magistrate, of Brisbane, and was as fol- 
lows : — 

QITEBNSLAND TO WIT. 

To Jlichael Doyle, constable, and to all other constables of the Queensland 
Police Force, and to the keeper of the Brisbane Gaol. 

Be it remembered that on the 26th day of May, in the year of our Lord 1881, 
Louis Joseph Watier, late of the colony of New Caledonia, a colony or possession 
of the realm of France, is brought before me, Philip Pinnock, Esq., Police Magistrate 
for Brisbane, sitting at the Police Court at Brisbane, to show cause why he should 
not be surrendered in pursuance of the Extradition Acts of 1870 and 1873, and 
of a treaty entered into on the 14th day of August, 1876, between Her Majesty 
and the then President of the French Republic, on the ground of his being con- 
victed of the commission of the crime of fraudulent bankruptcy and forgery, 
and uttering within the jurisdiction of the realm of France. And forasmuch as 
no sufficient cause has been shown to me why he should not be surrendered in 
pursuance of the said acts and treaty, — 

This is therefore to command you, the said Michael Doyle, and to all other 
police officers in the said colony, in Her Majesty's name forthwith to convey 
and deliver the body of the said Louis Joseph Watier into the custody of the 
said keeper of the gaol at Brisbane aforesaid, and you the said keeper to receive 
the said Louis Joseph Watier into your custody, and him there safely to keep until 
he is thence delivered pursuant to the provisions of the said Extradition Acts 
and treaty, for which this shall be your warrant. 

Given under my hand and seal at Brisbane, in the said colony of Queensland, 
this 26th day of May, a.d. 1881. 

Philip Pinnock, Police Magistrate. 

Mr. G. Markwell then moved for the discharge of the confinee, 
and sought to impeach the return on several grounds which are 
set forth in the affidavit of the confinee, and he referred to this 
affidavit, an affidavit of Tom Else, verifying an attached copy of 
proceedings taken before the Police Magistrate, and an affidavit 
of G. Markwell, verifying attached copies of a warrant under the 
hand and seal of Sir A. E. Kennedy, Governor of Queensland, 
and of a warrant of committal under the hand and seal of Phihp 



The Qdeen u. 
LoDis HnsTiN, 

CALLED Louis 

Joseph Watiek. 
Pring J. 



126 QUEENSLAND JUSTICE OP THE PEACE. 

The Qdeen r. Pinnock, Police Magistrate, of Brisbane, which affidavits had been 

LOUIB HUSTIN, ° i- 1 

CALLED Louis filed and used on the application for the writ. Mr. Attorney- 

JosE PH W atieb. Qenerai (Pope Cooper) appeared for the Crown, and making no 

Pring J. objection, I allowed these affidavits to be used. The 'objections 
above referred to are as follows : — 

That the commitment is illegal on the following grounds : — 

1. The requisition for my surrender was not made in accordance with the 
provisions of the 16th article of the Extradition Treaty, but was made by Edward 
Barrow Forrest, the vice-consul of the Republic of France, stationed in Brisbane, 
and the said vice-consul made his requisition for my surrender to His Excellency 
the Governor of Queensland, whereas the said requistion should have been made 
to His Excellency the Governor aforesaid by the Governor or chief authority of 
New Caledonia. 

2. The said warrant states that I was convicted of the commission of the crime 
of robbery, but there is not the least evidence against Louis Joseph Watier to 
that effect. And the evidence adduced shows that Louis Joseph Watier was 
detained in New Caledonia on the charge of fraudulent bankruptcy and falsification 
of documents. 

3. That the nature of the particular offence against the bankruptcy laws of 
France is not set forth, so that it is impossible to say whether it is of such a nature 
as would be deemed an offence against the bankruptcy laws of this colony. 

4. That falsification of documents is not a crime set forth in the said Extradition 
Treaty. 

5. Under article 7 of the said treaty it is provided that the warrant shall clearly 
set forth the crime of which the person claimed has been convicted, and state the 
fact, place, and date of his conviction ; and I say that the warrant of His Excellency 
aforesaid, by virtue of which I am now in custody, does not state the date of the 
alleged conviction against me. 

At the time I allowed these affidavits to be received I was of 
opinion that they were not admissible to impeach the return, but 
I thought they might be admissible for the purpose of showing a 
want or excess of jurisdiction in the PoUce Magistrate. The 
warrant of committal (the return) is in the form set forth in the 
second schedule to The Extradition Act of 1870, and by s. 20 of 
this Act, this form of committal, when used, shall be deemed to be 
valid and sufficient in law. I am of opinion, therefore, that the 
return is good on the face of it, and I decline to use the affidavits 
for the purpose of impeaching this return, as I think they are 
inadmissible for that purpose. This is a case which comes within 
the statute 31 of Car. 2, c. 2, and the cases show that the Court 
will not receive affidavits impeaching the return. {See case of 
The Sheriff of Middlesex, 2 A. and E., p. 273 ; in the matter of 
Clarke, 2 Q.B., p. 619 ; Brennan's case, 10 Q.B., p. 439, and Carus 



CRIMINAL REPOETS, 1860-1907. 127 

Wilson's case, 1 Q.B. 984, and the judgment of Lord Denham, ?^= Q??^" "• 

JO ) Louis Hustin, 

CJ ., p. 1008.) Unless, therefore, it can be proved by the affidavits called Lodis 
that there has been a want or excess of jurisdiction, as I hold the Joseph Watieb. 
return to be good, this motion must be discharged, and the con- Pring J. 

finee, Louis Joseph Watier, will be remanded. I find no facts 
disclosed in the affidavits which would warrant me in deciding 
that in this case there was either a want or excess of jurisdiction. 
The confinee was arrested by virtue of a warrant under the hand 
and seal of Sir Arthur Kennedy, Governor of Queensland, and this 
warrant is as follows : — 

By His Excellency Sir Arthur Edward Kennedy, Knight Commander of the 
3Iost Distinguished Order of Saint Michael and Saint George, Companion of the 
Most Distinguished Order of the Bath, Governor and Commander-in-Chief of the 
Colony of Queensland and its dependencies. 

To all and each of the constables of the police force of Queensland. 

Whereas a treaty was concluded on the 14th day of August, 1876, between Her 
Majesty and the then President of the Fiench Republic for the mutual extradition 
of fugitive criminals. And whereas, by an Order-in-Council of the 16th day of 
August, 1878, setting forth the said treaty. Her said Majesty, by and with the 
advice of Her Privy Council, under and by virtue of the authority committed to 
Her by the Extradition Acts of 1870 and 1873, did order, and it was thereby 
ordered, that from and after the 31st day of May, 1878, the said recited Acts 
should apply in the case of the said treaty with the President of the French 
Republic. And whereas in pursuance of the said treaty and the aforesaid Acts 
a requisition has been made to me. Sir Arthur Edward Kennedy, Knight, Governor 
of the colony aforesaid, by Edward Barrow Forrest, Esquire, whom I, the Governor 
aforesaid, recognise as vice-consul for France in Queensland, for the siu-render 
of Louis Joseph Watier, late of the colony of New Caledonia, a colony or possession 
of the realm of France, convicted of the commission of the crime of robbery within 
the jurisdiction of the said realm of France. These are therefore to command 
you forthwith, in Her Majesty's name, to apprehend the said Louis Joseph Watier, 
wherever he may be found in the colony of Queensland, and bring him before the 
Police Magistrate at Brisbane, in the said colony, to show cause why he should 
not be surrendered in pursuance of the aforesaid treaty and Ascts, for which this 
shall be yom- warrant. 

Given under my hand and seal, at Toowoomba, this 14th day of April, in the 
year of our Lord 1881, and in the forty-fourth year of Her Majesty's reign. 

A. E. Kennedy. 

He was then taken before the Police Magistrate of Brisbane 
(Mr. Pinnock), and charged with escaping from the settlement of 
New Caledonia. It appears to me that under The Extradition 
Acts of 1870 and 1873, and The Extradition Act (Queensland) 1877, 
and the Extradition Treaty with France, that the Governor's 
warrant for the confinee's arrest was good, and that the Police 



128 



QUEENSLAND JUSTICE OF THE PEACE. 



The Queen v. 

LoDis Hdstin, 

called lodis 

Joseph Watieb. 

Pring J. 



Magistrate, when the confinee was brought before him to be dealt 
with under these Acts and this treaty, was, so to say, seized of the 
case, and had jurisdiction to hear and adjudge upon it. By sub- 
section 2 of the 17th section of The Extradition Act of 1870, it is 
provided in reference to proceedings to be taken as to fugitive 
criminals in British Possessions, that " No warrant of a Secretary 
of State shall be required, and all powers vested in or acts author- 
ised or required to be done under this Act by the Pohce Magis- 
trate and the Secretary of State, or either of them, in relation to 
the surrender of a fugitive criminal may be done by the Governor 
of the British Possession alone." Since The Extradition Act 
(Queensland) 1877 has by Order-in-Council become law, the mode 
of procedure required by the Acts and treaty to be followed by the 
Secretary of State and Pohce Magistrates in England would be the 
most expedient course to follow (which course of procedure I 
indicated during the argument). I do not think, however, that 
the power conferred on the Governor by s. 17 (2) of The Extradi- 
tion Act of 1 870 is taken away. The warrant of arrest in this case 
I hold to be good in this respect. With regard to the first objec- 
tion, I decide that Mr. E. B. Forrest, being recognised by the 
Governor as vice-consul of France in this Colony, had authority 
to make the requisition for the surrender of the fugitive criminal, 
Louis Joseph Watier. Subsection 1 of section 17 of The Extradi- 
tion Act of 1870, and article 16 of the treaty, give power to a 
Governor in a colony to make the requisition, but this, however, 
does not, I think, interfere with the power given to a consul or 
vice-consul by the same subsection and article. The first objection 
therefore is bad. The other objections appear to me to go to the 
judgment and decision of the Pohce Magistrate, which I do not 
feel myself at liberty to review. The formal judgment is that 
this motion be discharged, that the writ of habeas corpus be 
quashed, and that the confinee Louis Joseph Watier be remanded 
to his former custody, under the warrant of committal exhibited 
and filed as the return to the writ. 



CRIMINAL REPOETS, 1860-1907. 



129 



[Full Court.] 

CUNNINGHAM v. McFARLANE AND ANOTHER. 

[1 Q.L.J. 49.— Note.— 17 Vic, No. 3, is repealed. See now s. 445 of Criminal Code.] 

Cattle Stealing Prevention Act (17 Vict., No. 3). 

To support a conviction for illegally using an animal under The CatUe Stealing 
Prevention Act (17 Vict., No. 3), the user must commence by trespass. 

Motion to make absolute a rule nisi for a prohibition granted 
by His Honour The Chief Justice, at the instance of John Cunning- 
ham against H. T. McFarlane (Acting P.M. at Roma) and W. S. 
Paul, of the firm of Sloane & Co. Cunningham was in charge of 
a flock of 20,000 sheep belonging to Sloane & Co., and when he 
arrived in the neighbourhood of Roma he was superseded by one 
Jones. Jones found him in a pubUc house, and produced a 
document countermanding Cunningham's authority. Jones ' 
asked if there was any horse at the pubUc house belonging to 
Sloane & Co. A horse was brought round which was identified 
as belonging to Sloane & Co., and Jones thereupon proceeded to 
remove the saddle and bridle, the property of Cunningham. 
Cunningham then interfered, mounted the horse and rode away. 
Cunningham, on his way to Roma, met Paul, who demanded 
possession of the horse, but refused to produce his authority, 
stating that he was Sloane & Co. Cunningham, who had been 
appointed by one Kilgour, the New South Wales representative 
of Sloane & Co., refused to recognise Paul, and rode away towards 
Roma. Paul followed, and in Roma endeavoured to obtain 
possession of the horse, and eventually gave Cunningham in charge 
for illegally using, Cunningham, according to his account, having 
ridden the horse in order to pay the wages of a man who had been 
employed with the sheep. At the time of his arrest no actual 
deUvery of the sheep to Jones had taked place. Cunningham was 
fined £2 by the Roma Bench. The rule was granted upon the 
following grounds, viz. : — (1) That there was no evidence tp show 
that Cunningham had used the horse for his own pleasure, con- 
venience, or profit, and (2) That he made a bona fide claim to be in 
lawful possession of it. 

Power moved the rule absolute. 

Griffith Q.C. {Ringrose with him) showed cause on behalf of 
Paul, and submitted that at the time the offence was charged the 
horse was in the possession of Sloane & Co., by their agent, Jones, 
who had taken possession of it at the pubhc house — that there 



1881. 
December. 

Lilley C.J. 
Harding J. 
Pring J. 



130 



QUEENSLAND JUSTICE OP THE PEACE. 



cunninoham v. 
McFablane 

AND AnoIHEB. 



Harding J. 



Pring J. 



was a sufficient determination of the bailment, and the horse 
being in the physical possession of Sloane & Co.'s agent, Cunning- 
ham was guilty of an offence against the statute. 

He quoted The Queen v. Steer (1 Denison's Crown Cases, 349)., 
and submitted that there was ample evidence from which the 
justices might find that the offence had been committed, the only 
question was whether the bailment had been determined. If it 
had been he was using the horse for his own pleasure, convenience, 
or profit, and that a deliberate trespass of this kind was an offence 
against the statute, and that the rule should be discharged. 

Habding J. : This case comes before us on motion to make 
absolute a rule nisi for a prohibition obtained from the Chief 
Justice against a conviction made by certain magistrates against 
one Cunningham for the unlawful user of a horse under The Cattle 
Stealing Prevention Act. As I gather from the facts, Cunningham 
was in possession of this horse and certain sheep and their appli- 
ances, lawfully. It was alleged that an agent of the owners had 
been appointed to retake possession of these sheep and horse 
from Cunningham ; that Cunningham was, undoubtedly, immedi- 
ately previous to the attempt to take possession, in possession of 
a certain horse. I think that the evidence shows nothing further 
than an attempt to regain possession of this horse from the agent, 
and that if it does that, Cunningham had not admitted the ap- 
pointment of the agent, which was in dispute, and consequently 
there was a bona fide claim made to the horse by Cunningham, 
which at the time the possession was alleged to be regained by 
the agent had not determined. Unless the horse were taken 
from the possession of a third party the party using it would not 
be liable under this Act, in other words, as said by the Chief 
Justice, the user must commence by trespass. The rule must 
therefore be made absolute, with costs against Paul. 

Peing J. : I am of the same opinion. I think the possession 
was never out of Cuiuiingham to such an extent as to warrant the 
action taken in this matter. The Act was never passed to meet 
such a case as this. Rule absolute, with costs against Paul. 

Solicitor for Cunningham : Chambers, agent for F. H. P. 
Thompson, Roma. 

Solicitors for Paul : Little, Browne, <fe Ruthning. 



CEIMINAL REPOETS, 1860-1907. 131 

[Full Cotjbt.] 
REGINA V. GASH. 

[1 Q.L.J. 54. — Note. — Offences agiunst the Person Act, s. 49, is repealed. See now 
s. 215 of Criminal Code.] 

Offences against the Person Act, s. 49, ^^**l- 

6lh December. 
Where an information contains in the very language of the statute a charge of 

misdemeanour, except in respect to the introduction of the word feloniously, Ltlley G.J. 

and there is no language that would contain a substantive crime in the nature of 

ielony, the word fdoniously will be rejected as surplusage. 

Crown Case Reserved. 

This was a special case stated by Mr. Justice Harding. 

The prisoner was tried at the Brisbane Criminal Sittings, on 
the 2nd December last, upon an information charging him that 
he, on the 23rd of August, 1881, at the South Pine River, in and 
upon one Martha Chesterfield, a girl under the age of twelve 
years, to wit, of the age of eleven years and eight months, felon- 
iously did make an assault, and her, the said Martha Chesterfield, 
then feloniously did unlawfully and carnally know and abuse. 
The Attorney-General opened the case as an offence defined in 
s. 49 of the Offences against the Person Act, and the case was so 
treated throughout the trial by the Judge and counsel upon 
both sides, Mr. Swanwick appeared for the prisoner. Martha 
Chesterfield was examined and cross-examined. In her examina- 
tion in chief she stated that she was twelve last Monday, and 
gave the names of her parents, brothers, and sisters, and other 
particulars. A duly certified copy of an entry in a Register of 
Births, kept in the General Registry Office, Brisbane, was tendered 
by the Attorney-General and received in evidence without objec- 
tion. The entry was of a birth on the 28th November, 1869, 
at German Station Road, of a female child named Martha, whose 
parents' names were Thomas and Mary Anne Chesterfield. It 
also contained the names and ages of their other children, 
agreeing in such particulars with the statement of Martha 
Chesterfield. Mary Anne Chesterfield (the mother) was examined, 
and referred to Martha as one of her children. On one or two 
occasions German Station was mentioned as a former residence 
of the family. In charging the jury His Honor told them that the 
above was all the evidence as to Martha's age before them, and 
that if they were satisfied of her identity with the person named 
Martha in the certificate of birth from a consideration of the 
facts above stated, her age was fixed thereby, but they must be 



132 QUEENSLAND JUSTICE OF THE PEACE. 

Kegina v. Gash, satisfied that her age was between ten and twelve years, or find 
the prisoner not guilty.. After the jury retired, Mr. Swan wick 
called His Honor's attention to the fact that he had not told the 
jury that there was no evidence of the identity of the person in the 
certificate with Martha, and asked His Honor to reserve the point 
for the consideration of the Full Court. The jury found the 
prisoner guilty. Mr. Swanwick moved the arrest of judgment on 
the following grounds : — (1) That the information charged the 
prisoner with a felony, and the crime of which he had been found 
guilty under the 49th section was a misdemeanour by statute. 
(2) The prisoner being charged with a felony by the Crown, the 
jury had left the Court, not in charge of any officer of the Court, 
after the information was exhibited and before the verdict. 
These points were not raised or urged to the jury at all, or to the 
Court, until the times mentioned. His Honor postponed judgment 
until the questions should have been considered by the Full Court. 

The Attorney-General appeared in support of the conviction. 

There was no appearance on behalf of the prisoner. 

With regard to the first point the Court held that, inasmuch 
as nothing was said to the jury, and no objection raised by the 
prisoner's counsel during the trial, he must be taken to have 
accepted the evidence regarding the girl's age as sufficient. It 
could not allow counsel to lie by, they must deal fairly and 
candidly with the Court. But independently of that there was 
evidence to go to the jury as to the girl's age. 

As to the second point. The Attorney-General submitted that 
the word feloniously, in the information, was mere surplusage. 

The Chief Justice referred to the case of the Queen v. Wilkie,. 
the converse of this, in which the Judge (Lutwyche J.) at the 
trial, upon his own motion, struck out the word feloniously in 
the information as unnecessary. The man was convicted of 
felony, the information containing a concise description of the 
offence, but the word feloniously was omitted because the Judge 
struck it out. The case came before the Full Court (Cockle C.J., 
and Lutwyche J.), and it was held that the word feloniously 
was a word of art, and should have been put in, and the prisoner 
was discharged. 

The Attorney-General quoted Scofield's case (2 East's Pleas 
of the Court, 1029), in which case it was held that the insertion 
of the word feloniously did not constitute a felony, and if the 
offence charged amounted to a misdemeanour and not a felony^ 



CEIMINAL REPOETS, 1860-1907. 133 

the prisoner would be properly convicted and the word feloniously ^''Egina v. Gash. 
rejected as surplusage, and submitted that the defect was cured 
by the verdict, because the jury must have found the act to have 
been urLla^\iul — that everything necessary to found a charge of 
misdemeanor had been done. 

The Court reserved judgment merely on the question of the 
word feloniotisly having been used. 

LiLLEY C.J. : I have had the opportunity of considering the Lilley C.J. 
point made by the counsel for the prisoner. The facts appear 
to be clearly these. Until the close of the trial no one averted to 
the fact that the word feloniously had been introduced into the 
information at aU. The man suffered no disadvantage whatever, 
but was tried without a word of comment or objection for the 
substantive misdemeanor under the statute. The section of the 
statute was used, and the information contains in the very language 
of the statute a charge of misdemeanor, except in respect of the 
introduction of the word feloniously. I think that the word may 
be rejected as surplusage. There is no case against it, and it 
seems to me to be a construction of common sense. The language 
of the information contains the substantive misdemeanor, and 
there is no language that would contain a substantive crime in 
the nature of felony in the information. The conviction must be 
affirmed. 

Peing J. : I concur. I consider a substantive offence against PringO 
the 49th section of the Offences against the Persons Act is shown 
in the information, and although it may contain the words 
" feloniously did make an assault and her the said Martha 
Chesterfield " — and also the word " feloniously " in the next 
line — still, these words being left out, a substantive offence 
appears in the information sufficient to charge an offence against 
the 49th section. The conviction must therefore be affirmed. 

Conviction affirmed accordingly. 



134 



QUEENSLAND JUSTICE OF THE PEACE. 



1881. 
7th Noiember. 

Harding J. 



[In Chambers.] 

In re MINNIS. 

[1 Q.L.J. 56 Note.— See also R. v. Kenniff, 1902 Q.W.N. 71, post.] 

Gaol Regulations — Bight of Legal Adviser to interview prisoner 
out of hearing of gaol officials. 

Swanwick (legal practitioner) applied to Mr. Justice Harding 
for a rule calling upon the Sheriff of Queensland to show cause 
why he (Mr. Justice Harding) should not order the keeper of Her 
Majesty's Gaol to permit Swanwick to interview Michael Minnis 
(then in gaol on a charge of murder) at all reasonable hours up 
to the day of his trial without the presence of the said gaoler 
or other officials. Mr. Justice Harding made the rule absolute, 
granting leave to Swanwick to interview the prisoner at all reason- 
able hours, the gaoler and his officials to be at liberty to see the 
parties during such interview but not to hear them, the gaoler 
however to have aU the powers given to him under the Gaol 
Regulations. 



1882. 
11th July. 

Lillet/ G.J. 
Harding J. 



[Full Cottet.] 
DOWLING V. FRITZ AND OTHERS. 



[1 Q.L.J. 82.— Note. 



-29 Vic., No. 5, s. 43, is repealed, 
of Giiminal Code.] 



See now ss. 390 and 46S 



Malicious injuries to_ property — 29 Vic, No. 5, s. 43. 
A snake does not come within the meaning of the iSrd section of 29 Vic, No. 5. 

This was a motion to make absolute a rule nisi, granted at the 
instance of Patrick DowUng, of Dalby, for a writ of prohibition 
against C. R. Haly, P.M., of that place, James Skelton, J.P., 
and John Fritz, complainant in the Court below, in respect of a 
conviction whereby Dowling was fined £10 for " maliciously 
wounding a Tasmanian diamond snake " belonging to Fritz. 

It appeared that Fritz, who was a showman, being about tO' 
open a show on the Dalby racecourse, was putting his para- 
phernalia over the fence, when some dispute occurred between 
him and Dowling, who had purchased the gate privileges, and 
the latter threw a box containing a snake over the fence, injuring 
the animal so much that it was expected to " pine away and die." 
Fritz stated that he had paid Mr. Jessop for the right to exhibit 



CRIMINAL REPORTS, 1860-1907. 135 

his show on the course, but not being allowed to take a dray Dowlinq v Fmtz 

inside he was compelled to put his boxes over the fence. Dowling, 

however, maintained that, as purchaser of the gate, he was 
justified in the action he took, and said he did not throw the 
snake over, but put it quietly through the fence. The informa- 
tion was laid under the 43rd section of the Injuries to Property 
Act (29 Vic, No. 5), which provides for punishing those who 
" shall unlawfully and mahciously kiU, maim, or wound any dog, 
bird, beast, or other animal, not being cattle, but being either 
the subject of a larceny at common law, or being ordinarily kept 
in a state of confinement, or for any domestic purpose." The 
rule nisi was granted on the grounds : — 

(1) That a snake was not a subject of larceny at common law, and not an animal 
ordinarily kept in confinement ; and (2) that the injury, if any, was done in the 
exercise of a bona fide right, the snake being at the time a trespasser. 

Griffith Q.G. moved the rule absolute. 

Garrick Q.G. showed cause, and cited in support of his argument, 
Goke's Reports, 487 ; Rex v. Seering, R. ds Ry., Gr. Ga. 350 ; 
Wilkinson's Queensland Magistrate, 392 ; Oke's Synapsis. 

LiLLEY C.J. referred to an article in the Law Journal, April 
I5th, p. 196, in which two EngUsh decisions, the one relating to a 
Hon, and the other to a mouse, are commented upon. 

Garrick Q.G. was stopped by the Court, who said the matter 
would be decided on the first point. 
Griffith Q.G. was not called upon. 

LiLLEY C.J. : The Court has no doubt about the matter on the Lilley C.J. 
first point. A snake was not covered by the description 
" ordinarily kept in a state of confinement." The description 
was genuine, and referred to animals which were allowed to go 
in and out of their places of confinement — that was, animals 
that were confined as a rule but not always. Snakes, as a class, 
were certainly not kept in confinement. The rule would therefore 
be made absolute on the first point. 

Power argued for Fritz, that costs should not be granted 
against him as the ground was a novel one. 

The Court refused the application, and the rule was made 
absolute with costs against Fritz. 

Solicitor for DowUng, Thos. Bunton. 
SoUcitors for Haly, P.M., Foxton & Gardew. 
Sohcitor for Fritz, A. W. Ghamhers. 



136 QUEENSLAND JUSTICE OP THE PEACE. 

[Full Coubt.] 
VICKERS V. SELLHEIM AND OTHERS. 

[1 Q.L.J. 131.— Note.— 35 Vic, No. 4, s. 27, is repealed. See now s. 447 of Criminal 

Code.] 

^^^^- Brands Act, (35 Vic, No. 4), s. 27. 
8th May. 

The fact of a brand being found put over the registered brand of the owner 

Prina^J °f * beast does not raise the presumption that the owner of the former brand 

— '- either put it there or allowed it to be put there. 

Motion to make absolute a rule nisi for a prohibition granted 
by His Honour The Acting Chief Justice at the instance of George 
Vickers against PhiUip Frederick Sellheim P.M., at Charters 
Towers, Joseph Booth Whitehead, J.P., and John Inch, both of 
the same place. A calf, the property of Inch, was branded by 
him with his registered brand, and lent by him in company 
with his mother to one Cass, a dairyman. While in Cass' posses- 
sion, the cow and calf were lost sight of for some time, and 
eventually the calf was found near Vickers' house with his registered 
brand newly put over that of Inch. There was no direct evidence 
of branding, and Vickers did not appear. The bench, consisting 
of Sellheim and Whitehead, convicted Vickers of wilfully permit- 
ting the calf to be branded with his registered brand, and fined 
him £10, and £3 Is. 6d. costs. The rule was granted on the 
ground that the evidence did not support the conviction. 

Griffith Q.G. (Gore Jones with him), moved the rule absolute. 

Feez showed cause, and submitted that under the 27th section 
of the Brands Act, if there was sufficient evidence to support 
the justices finding that the calf was permitted to be branded by 
Vickers, the Court would not interfere with the finding that he 
had wilfully permitted the same. This was decided by the late 
Chief Justice, Sir James Cockle, in Ex parte Kelly, Wilkinson, 
page 9. So that all the Court would have to find was, did Vickers 
permit the calf to be branded with his registered brand. Of this 
there was no direct evidence, but there was such presumptive 
evidence as would support the conviction. The fact of Inch's 
calf branded with his brand being found near Vickers' house 
newly branded with his brand over Inch's brand raised such a 
reasonable presumption that Vickers permitted it to be branded 
that it was for him (Vickers) to rebut that presumption, and this 
he had not done. If the Court held such evidence as this to be 
insufficient the section of the Act might as well be cut out of the 



CEIMINAL REPOETS, 1860-1907. 



137 



Statutes, for it was almost impassible to get direct evidence of 
any offence under the section. On these grounds the rule should 
be discharged. 

Griffith Q.G. contended that to uphold such a conviction would 
be to subvert all the principles of criminal law embodied in the 
maxim " Every man is presumed to be innocent till proved 
guilty." There was absolutely no evidence either direct or 
presumptive of Vickers wilfully permitting the calf to be branded, 
and the rule should be made absolute with costs. 

Habding A.C.J. : This is a motion by Mr. Griffith to make 
absolute a rule nisi granted by me on the 2nd April, 1883, for a 
prohibition against the magistrates and the complainant pro- 
ceeding on a conviction or order made 1st February, 1883, whereby 
Vickers, the apphcant for the prohibition, was found guilty 
of wilfuUy permitting to be branded with his registered brand a 
certain white heifer. The offence was charged under s. 27 of 
the Brands Act of 1872, which enacts, " If any person shall 
wilfully brand any stock of which he is not the rightful owner or 
shall wilfully cause direct or permit any stock of which he is not 
the owner to be branded with his brand such person shall on 
conviction for every such offence in a summary way forfeit and 
pay any sum not exceeding fifty pounds." The requirement to 
bring the offender within that section is that he shall wilfuUy 
cause, direct, or permit any stock of which he is not the owner 
to be branded with his brand. First of all you must have stock 
branded with the brand of a person not the owner of that stock, 
then you must show that that brand was wilfully permitted to be 
placed on the stock by the owner of the brand. The meaning of 
the word " wifful " is now understood to be and according to the 
most recent decisions is " knowingly, and fraudulently." There- 
fore a brand must have been permitted to be on the stock know- 
ingly and fraudulently on the part of the person whose brand it is, 
that is, that he must have permitted the brand to be placed on 
stock of which he was not the owner with the fraudulent intent 
in most cases to acquire the ownership in the stock. It was 
contended by Mr. Feez, that the mere fact of the brand being found 
on the stock would raise a presumption that the person whoSe 
brand ft was had branded it and committed an offence. I can 
see if a brand is found upon a beast and it is proved that the 
owner of the brand put it there the law will presume he 
put it there knowingly and fraudulently, but the mere finding 
of a brand upon a beast without proving that the owner 



VlOKERS V. 

Sellheim and 
Others. 



Harding A.C.J. 



138 



QUEENSLAND JUSTICE OF THE PEACE. 



ViOKERS V. 

Sellbkim and 
Others. 

Harding A.C.J. 



Pring J. 



of the brand put it there or permitted it to be put there 
does not connect the owner of the brand in any way with the 
branding. Mr. Feez's presumption would go to this extent : 
If John Smith was found murdered every person would be pre- 
sumed to have murdered him ; but the proper way to look at 
such reasoning is this : If A.B. had killed John Smith the pre- 
sumption would be that he had murdered him until the contrary 
was shown. Now here the only facts in the case are that the 
heifer was the property of Inch, the respondent, that it had his 
brand upon it, and that it was subsequently found with Viekers' 
brand upon it, and shortly afterwards seen in the neighbourhood 
of Viekers' residence, and further, the respondent said that 
Viekers might have branded it in mistake. I can see no evidence 
to connect him with the offence charged. Under these circum- 
stances I think the evidence does not support the conviction, 
and that this rule must be made absolute with costs. 

Peing J. : I am of opinion that there was no evidence to 
support the conviction, and that the rule must be made absolute 
with costs. 

Sohcitors for apphcant : Daly & Hellicar, agents for Marsland, 
Charters Towers. 

Solicitor for respondent : J. S. Salmond. 



1883. 
5th June. 

Harding A.G.J. 
Pring J. 



[Full Cottet.] 
REGINA V. EDWARD CAMM. 

[1 Q.L.J. 136.— Note.— See now ss. 212 and 214 of Criminal Code. See R. v. Hinck- 
ley, 2 Q.L.J. 182, post.] 

Upon a charge of having carnally known and abused a female child under the 
age of ten years, scientific evidence or the evidence of experts can be adduced 
and is receivable as some evidence of the age of the child. 

Special Case stated by Mr. Justice Cooper. 

The prisoner Camm was tried before Mr. Justice Cooper at 
Townsville, upon a charge of criminally assaulting an aboriginal 
girl named Rosie, under the age of ten years. The only evidence 
of the girl's age was given by two doctors, both of whom swore 
positively that she was under ten years of age, basing their 
opinion on the condition of her teeth. One stated that she was 
between five and seven, and the other that she was about seven, 



CEIMINAL REPOETS, 1860—1907. 



139 



while it was afBrmed that the teeth showed conclusively that „ BEGiNAti. 
T. . , 1 rr,! ■ . T . Edward Camm. 
Kosie was not ten years old. This evidence was objected to by 

Mr. MUford, who defended the prisoner, but admitted by the 
Judge as evidence that might be considered by the jury. In 
summing up he told them that the age of the child was an in- 
gredient of the offence, that it was a material fact, and it was 
the duty of the Crown to establish that fact to their satisfaction 
beyond a reasonable doubt : that the only evidence on the point 
was the medical testimony and the presence of the child : that 
the medical testimony was that of experts, and if from any 
circumstances, whether from the appearance of the child or 
otherwise, they had any doubt about it they were at Hberty to 
reject it altogether, in which case the prisoner would be entitled 
to an acquittal. The jury found the prisoner guilty, and he was 
sentenced to penal servitude for Ufe. The question for the Court 
was : — Was there sufficient evidence of Rosie's age to be left to 
the consideration of the jury ? 

The Attorney-General {Power with him), appeared for the Crown, 
and supported the conviction on the ground that the sufficiency 
of the evidence was a question for the jury. 

The following cases were quoted : — Regina v. Wedge, 5 C. & P. 
298 ; Regina v. Nicholls, 10 Cox C. Cases, 476 ; Garter v. Boehm, 
1 Smith's L.C., 572 ; Regina v. Goode, 7 A. & E., 536. 

The prisoner was not represented. 

Harding A.C.J. : — This is a case stated for the opinion of this Harding A.C.J. 
Court by Mr. Justice Cooper. The facts are sufficiently stated, in 
the case, and have been read at the bar. The real question is 
whether upon a charge of having carnally known, and abused a 
female child under the age of ten years, scientific evidence or the 
evidence of experts can be adduced and is receivable as some 
evidence of the age of the child. That it is not the best and most 
perfect evidence is seen at once, and where the best and most 
perfect evidence is not obtainable as in this case I have no doubt 
it is receivable, the value or weight of it being for the jury. The 
law as stated by the learned Attorney-General, from Smith's 
Leading Cases, 572, namely : — " The difference is, however, 
perhaps less upon any point of law than on the appHcation of a 
settled law to certain states of facts ; for, on the one hand, it 
appears to be admitted that the opinion of witnesses possessing 
peculiar skill is admissible whenever the subject matter of inquiry 
is such that inexperienced persons are unUkely to prove capable 



140 

Eegina v. 
-Edward Camm. 

Harding A C. J. 



Pring J. 



QUEENSLAND JUSTICE OF THE PEACE. 

of forming a correct judgment upon it without such assistance, 
in other words, when it so far partakes of the nature of a science 
as to require a course of previous habit, or study, in order to the 
attainment of a knowledge of it " is now practically adopted in 
all our text books. Here the doctors both swore that they were 
able to form an opinion as to the age of the child, and one of them 
gave certain details as to what induced him to form that opinion, 
and it was for the other side to cross-examine the witness as to 
his special knowledge upon the subject. It also apears that the 
child was in court, and the jury could weigh the evidence and 
inspect the child and judge for themselves. In this case the judge 
drew the attention of the jury to the nature of skilled evidence, 
and pointed out to them the danger of such evidence. I think 
the evidence was admissible, and the conviction must be affirmed. 

Pbing J. : I think the evidence was admissible, and having 
been left to the jury with a proper direction by the judge, I see 
no reason to disturb the conviction. 



1884. 
Sth February. 

Harding A.G.J. 



[Roma Circuit Couet.J 

REGINA V. PARKER. 

[1 q.L.J. 194.] 

Delivery of Gaol. 

Paekee's name appeared on the gaol calendar as standing 
committed for trial for attempted suicide. Power, prosecuting 
for the Attorney-General, stated that his name was on the calendar 
by mistake, that he had been committed to the District Court. 
His Honour directed the warrant of committal to be produced. 
The gaoler produced it, stating there was no mistake, the warrant 
committed the prisoner to Roma gaol till he was dehvered in due 
course of law. It was endorsed in the margin in different ink from 
the body " for trial at the sittings of the next Southern District 
Court at Roma, 1884. James Raeten, A.C.P.S." James Raften, 
whose name appeared in the body of the warrant, is a constable. 
There was no other warrant against him, Mx. Power presented no 
information, and His Honour discharged the prisoner. 



CRIMINAL REPORTS, 1860-1907. 



141 



[Full Couet.] 
REGINA V. BARTON. 

[1 Q.L.J, supp. 16. — Note. — 29 Vic, No. 11, is repealed. See now chapter III. and 
s. 360 of Criminal Code.] 

Marriage — Time of celebration of — Validity of marriage — Bigamy 
— Bigamous marriage beyond jurisdiction of the colony — 
29 Vict., No. 11—28 Vict., No. 15, s. 11. 

The 11th sect, of The Marriage. Act, 1864, is merely directory, and therefore a 
marriage celebrated before 8 o'clock a.m. or after 8 o'clock p.m., is not on that 
account void. 

The statute, 9 Geo. IV., cc. 31 & 83, are repealed in this colony by 29 Vic, 
No. 11, and the repeal is not limited by the latter or any other statute from affecting 
the jurisdiction of the Supreme Court. Consequently, the Court has no jurisdiction 
in the case of a bigamy or other offence committed outside of the colony and its 
dependencies. 

Special Case Reserved. 

The prisoner, in the year 1874, was married in Queensland 
by a minister. The marriage was regular in every respect except- 
ing that it was celebrated after the hour of 8 o'clock p.m. Some 
time after the celebration of this marriage the prisoner went 
to England and there went through the form of marriage with 
another woman, the first wife being still ahve, and then returned 
to Queensland. The question reserved for the consideration 
of the Court was whether the first marriage, having been celebrated 
after- the hour of 8 o'clock p.m., was vahd. 

Swanwick appeared for the prisoner. 

Lilley C.J. : The question reserved by this case for our 
decision is, whether a marriage after 8 o'clock in the evening was 
valid ? If it was, then the prisoner's second marriage during the 
life of his first wife was bigamous, and the conviction must be 
affirmed. If the first marriage was not valid, then the second was 
lawful, and the conviction must be set aside. Our decision 
must depend upon the effect to be given to the proviso to the 
11th section of The Marriage Act of 1864, which is as follows :— 
" Provided that no marriage celebrated by any minister or regis- 
trar shall be deemed to be legal or vaUd unless celebrated between 
the hours of 8 o'clock in the morning and 8 o'clock in the evening." 
It will be observed that the prohibition is absolute. It depends in 
no way on the will, knowledge, intention, or good or bad faith of 
the parties to the marriage. It is fatal to the innocent, who beUeve 



1879. 
8th August. 

Lilley C.J. 
Lutwyche J, 
Harding J. 



Lilley C.J. 



142 QUEENSLAND JUSTICE OF THE PEACE. 

Eeginaw. themselves to be marrying within the prescribed hours equally 

' with the wilful or designing who may be knowingly marrying 

LiUey C.J. q^^ ^f time. All the clocks in the village may indicate the hour 
to be seven, but if it can be shown by exact scientific observation 
that it was in fact one minute past eight, the marriage wiE be 
void. At any time, however distant, the proof of this circum- 
stance will avoid the marriage. Time has no healing influence 
upon it. The evidence of some local philosopher with his chron- 
nometer, if believed by a jury, will suffice to invalidate a marriage 
solemnised in good faith, sever the long estabUshed and publicly 
recognised relation of man and wife, reduce a seemingly legitimate 
family to bastardy, and deprive them of their right to their 
ancestors' property. The language of a statute must, however, 
receive the interpretation conveyed by its ordinary meaning, 
however cruel or oppressive may be the consequences. It is 
binding upon us to give effect to the intention of the Legislature, 
if it is clear and unmistakeable. If the whole law on the subject 
is consistent, and pronounced to one end, it must take its course. 
Section 12 of the statute which follows the above proviso, is as 
follows : — " Every marriage which shall be celebrated by any 
minister or registrar as aforesaid, after oath or solemn affirmation 
so made, shall be a legal and valid marriage to all intents and 
purposes, and no other marriage, except as hereinafter provided, 
shall be vaUd for any purpose." This section would seem to be 
unnecessary if it were not inserted to show that some of the 
preceding requirements are essentials, whilst some of them are only 
directory. If this section was intended by the Legislature to 
point out all the essentials to the validity of the marriage, it is 
inconsistent with the absolute terms and effect of the proviso 
in the 11th section. In such a case there is a clear rule of interpre- 
tation for our guidance, the later provision of a statute gives the 
law and prevails over an inconsistent preceding one. Section 12, 
when it speaks of a marriage " celebrated by any such minister 
or registrar as aforesaid " means " celebrated by some minister of 
religion ordinarily officiating as such " [s. 2], or " celebrated by 
such registrar as aforesaid " — that is, in the manner prescribed 
by s. 9. The mode of celebration by the registrar is prescribed 
by s. 9 — " Where the parties to be married shall before the 
Registrar for Marriages of the district within which the intended 
wife ordinarily resides sign a declaration in the form set forth 
in the schedule to this Act, marked A, the marriage may be 
celebrated between such parties by such district registrar in the 



CRIMINAL REPORTS, 1860-1907. 148 

form of words set forth in the schedule hereto marked B, to be Rboina v. 
, T , . , , , . , . Barton. 
repeated and signed by the parties to such marriages respec- 

tively." The words in schedule B once pronounced and signed LiUeyC.J. 

by the parties, the marriage is complete and valid — " I 

of do hereby declare, in the presence of A.B., Registrar of 

Marriages for the district of , that I take of to 

be my lawful wife, and I the said do declare that I take the 

said to be my lawful husband." It is then " celebrated " 

after oath or solemn afl6Lrm.ation so made. The oath is required 
by s. 10, and is set out in schedule C. It seems to me quite clear 
that the words as aforesaid in s. 12 have no reference to the hours 
of celebration in the preceding proviso, and do not incorporate 
them as essentials of a vaUd marriage. On looking to the 
previous Marriage Act, 19 Vic, No. 30, ss. 2 to 6, from which s. 12 
is copied without alteration, it will be seen that the words as 
aforesaid refer to the mere form of celebration by the registrar. 
Neither time nor place is mentioned in that statute. They can 
have no reference to the mode or form of celebration by the 
minister, because neither statute prescribes any mode or form 
of celebration by him, and if they do not refer to the form or 
mode of celebration by him in the present Marriage Act, they do 
not incorporate the preceding proviso as to time. We should thus 
have this result, that tim.e is essential to a marriage by the regis- 
trar, but not by the minister, although they are both included 
in the proviso. The words ' as aforesaid ' must thus be held 
to be capable of receiving two inconsistent interpretations, 
which is absurd. But further, if the words as aforesaid refer to 
s. 11, they include the whole of that section, so that a marriage 
in an ofl&ce not pubUcly used by the registrar, or with closed 
doors, would be invalid, inasmuch as s. 12 declares that " no 
other marriage (except as thereinafter provided) shall be valid 
for any purpose." It is not unimportant to note that s. 12 is 
preceded by a marginal note, " essentials for valid marriage." 
Of the aid towards the interpretation of our modern Acts from 
the marginal notes to the statute, I may quote the language of the 
present Master of the Rolls : " 7w re Venour's Settled Estates 
(L.R. 2 Ch. Div. 525) , this view is borne out by the marginal note ; 
and I may mention that the marginal notes of Acts of Parliament 
now appear on the Rolls of Parliament, and, consequently, form 
part of the Acts ; and, in fact, are so clearly so that I have known 
them to be the subject of motion and amendment in Parliament." 
It is certainly valuable where it confirms an independent interpre- 



M4 QUEENSLAND JUSTICE OF THE PEACE. 

Eegina v. tation. The effect of my construction of s. 12 is not to repeal the 
proviso to s. 11, but to reduce it to a direction obligatory upon 

LiUey C.J. ^^^ minister or registrar not to celebrate a marriage except between 
the hours of 8 in the morning and 8 in the evening, but the marriage, 
if celebrated outside those hours, is still valid and binding. In 
other words, the time is not an essential of a valid marriage. 
I am aware that we are, as far as we possibly can, to interpret 
the statute so as to preserve the actual language and its plain 
meaning, and to harmonise it with the rest of the words of the Act. 
We are to avoid imputing to the Legislature either ignorance of the 
effect of their words or rashness of expression, but where their 
last words are clear, and produce harmony of intention and 
consistency of purpose in their legislation, they most prevail. 
We must look at the whole chapter of the marriage law, both to the 
preceding and subsequent statutes. On looking at s. 4 of the 
latest Act, The Justices Marrying Act of 1872, we shall find it 
enacted that, " It shall not be lawrful for any justice to celebrate 
any marriage earUer than 8 o'clock in the morning, or later than 
6 o'clock in the afternoon." The justice celebrating a marriage 
out of time would do an unlawful act, followed by certain personal 
consequences, but the marriage would be vahd. The whole 
marriage law passed in review at that time [see s. 5], and was 
incorporated in the Act of 1872, so far as it applied. Would the 
Legislature provide that a marriage out of time before a justice 
should be valid, and leave the law so that a marriage before a 
registrar or minister out of time should be void ? It seems to 
me that the Legislature had the same view of the law in their 
minds that I have taken — that is, that the proviso to s. 11 of the 
Act of 1864, read with the whole of that statute, made it merely 
a breach of the law by the registrar or minister to marry persons 
out of the fixed hours, but did not invalidate the marriage. It is 
better to regard the proviso of 1864 as inaccurately, or even 
carelessly expressed, than to impute something like folly to the 
framers of the law. If the proviso avoids the marriage, it applies 
only to persons marrying before a minister or registrar, and Jews 
and Quakers may marry at any time. Nay, more, a marriage by 
any persons before a person not lawfully authorised to celebrate 
marriages, if but one of the parties were innocent, and beheves him 
to be so, will be valid at any hour. Clandestine or runaway 
matches, or the marriages of minors without consent, or upon a 
forged consent, are not invalid. But marriages by persons of full 
age, free from any legal impediment, and uniting themselves in 



CEIMINAL EEPORTS, 1860-1907. 145 



Beoina v. 
Barton. 



perfect good faith, with the sanction of every one interested in 
securing a valid marriage, if beyond hours, are void. Every 
other provision may be wilfully violated, and the marriage *'' ' 

shall be good. To be beyond time is the one fatal circumstance 
in the whole law. It destroys what the policy of the law favors 
and seeks to promote and uphold — marriage. Perjury, forgery, 
a sham minister or registrar, the wilful marriage of minors without 
consent, will not invalidate the marriage. Offences against 
the Act are visited with penalties, which may be borne, because 
they are nowhere inflicted, unless the law be " knowingly " or 
" wilfully " violated. But the accidental circumstance of marriage 
one minute out of time may bring upon innocent persons and their 
offspring the loss of social status, rights, and property accruing 
from the marriage relation. It seems to me, upon fair and neces- 
sary rules of legal interpretation, I can say that the Legislature 
had no such intention. The first marriage was vahd. This 
interpretation declares the like law to exist for the minister, 
registrar, or justice celebrating the marriage, and the one rule of 
vaUdity for the marriage bond. The case was properly left to 
the jury, and the conviction on the point raised at the trial would 
be affirmed. But a more important — at all events, a seriously 
important — question is raised upon the face of the case itself, 
and that is, whether our Court has jurisdiction to try this offence. 
On looking at the statement of the case it will be found that the 
second marriage was celebrated in England ; the prisoner was 
married in England by a minister of the EstabUshed Church. 
Now, our statute, the Act relating to offences against the person, 
declares that where the crime of bigamy shall have been committed, 
whether the second marriage be in Queensland or elsewhere, it 
shall be felony. It is a very clear rule of law that a legislature 
of Umited jurisdiction can speak only within the limits of its own 
territory, so that the words in this section must be read as though 
standing " Queensland or its dependencies," to give them anything 
like legal force. There can be no question whatever about the 
matter, because all colonies can deal only with offences committed 
within their own territory, except where the Imperial Parliament 
has given jurisdiction. Previous to the 9 Geo. IV., c. 83, the 
Superior Courts at Westminister had criminal jurisdiction in the 
case of bigamy wherever the second marriage might have taken 
place. That jurisdiction was given by the 9 Geo. IV., c. 31. 
By the 9 Geo. IV., c. 83, the Courts of New South Wales and the 
other colonies had given to them the same criminal jurisdiction 



146 



QUEENSLAND JUSTICE OP THE PEACE. 



Eegina r. 
Barton. 

Lilley C.J. 



Lutwyehe J 



that the Court of Queen's Bench at Westminster had at the time 
of the passing of that statute. The effect of that was, in my 
opinion, to give to the Supreme Court of New South Wales and 
of this colony jurisdiction in the case of bigamy wherever the 
second marriage might have taken place. By our first Supreme 
Court Act, passed, I think, in 1863 or 1864, the 9 Geo. IV., c. 83, 
was repealed, but it was enacted that nothing therein contained 
should diminish the jurisdiction of the Supreme Court. The 
jurisdiction rested upon the Imperial Statute creating the crime 
of bigamy, which is a creature of statute entirely. But in 1865 
the local Legislature here entered upon the work of repeal and 
amendment and consolidation. By seven different Acts they 
undertook to consolidate and amend the criminal law of the 
colony, they prepared the consolidation, and passed the various 
Acts, one of them being the Act giving jurisdiction to the Court 
over bigamy, where the marriage was celebrated, in Queensland 
or elsewhere. When they had done that they repealed the 
Imperial Statute, 9 Geo. IV., c. 31, the whole of it, and so cut away 
from under their feet the Imperial legislation upon which the 
jurisdiction of the Court stood in respect of bigamy. The juris- 
diction of the Court then rested solely upon the local Act giving 
jurisdiction to the Court where the second marriage took place, 
in Queensland or elsewhere. We must read the Acts of the 
Legislature as speaking within its own jurisdiction, and Queens- 
land or elsewhere can only be read, in my judgment, as Queensland 
or its dependencies. This marriage took place in England, after 
the passing of the statute to which I have referred ; it was an 
offence, therefore, not against our law, and not triable here. 
I am of opinion, therefore, the conviction must be quashed. 

LuTWYCHE J. : Many serious evils — pointed out by the Chief 
Justice in his judgment — would result from the Court holding 
that time was of the essence of the contract of marriage. While, 
on the other hand, no practical inconvenience will follow from 
an opposite conclusion. It is in the highest degree improbable 
that any minister, registrar, or justice of the peace will wilfully 
contravene the directory provisions of the statute by anticipating 
or exceeding the period of time within which the Legislature 
has declared that a marriage shall be solemnised, and thereby 
expose himself to the heavy penalties imposed by the 25th section 
of the Marriage Act of 1864. Oversights may indeed occur, but 
they must be very rare. The present case is the first of the kind 
that has been brought under the notice of the Court, although 



CRIMINAL REPORTS, 1860-1907. 



147 



the Act in question has been in force nearly fifteen years. I 
should be loath, however, in deciding this case, to found my 
opinion in any degree upon the terms of the marginal note attached 
to the 12th section of the Act. Whatever may be the case in 
England, the marginal notes of colonial statutes, especially in 
the earlier days of legislation, are notoriously unreHable. I will 
only say, in answer to the fii-st question submitted to the Court, 
that in my opinion the marriage of the 27th October, 1874, 
was not an illegal marriage within the proviso of the 11th section 
of the Marriage Act of 1864, but, on the contrary, was legal and 
valid ; but, secondly, I think the case ought not to have been 
left to the jury, and that the conviction cannot be sustained, 
on the ground of want of jurisdiction. By the Criminal Statutes 
Repeal Act, 29 Vict., No. 14, the Imperial Act, 9 Geo. IV., c. 31, 
which regulated the law relating to bigamy, was repealed, and the 
provisions of a Queensland statute, 29 Vict., No. 11, s. 58, were 
substituted for it. As it is the second marriage which constitutes 
the offence, the prisoner, who must be presumed for the purposes 
of this part of the case to be a subject of Her Majesty, might 
have been tried in England, but was not properly tried here. 
The Imperial Act, 24 and 25 Vict., c. 100, s. 57, of which the 58th 
section of our colonial Act is a transcript, would have been appU- 
cable if the second marriage had been celebrated in Queensland, 
and the trial had taken place in England, because the Imperial 
Parliament has power to pass laws which are binding on aU Her 
Majesty's subjects, wherever they may be ; but the laws of 
Queensland are only binding within the Umits of the colony and 
its dependencies. 

Harding J. : I agree with what has been said by their Honors. 
To my mind, the first question turns upon the construction of the 
proviso to the 11th section of the Marriage Act of 1864 — " Pro- 
vided that no marriage celebrated by any minister or registrar 
shall be deemed to be legal or vahd unless celebrated between 
the hours of eight o'clock in the morning and eight o'clock in the 
evening " — whether that proviso is merely declaratory or im- 
perative ; reading the proviso by itself it would seem to be im- 
perative. But to ascertain whether it is or not, it has to be 
considered whether or not it is cut down by the 12th section, 
which enacts that " Every marriage which shall be celebrated by 
any such minister or registrar as aforesaid after oath or solemn 
affirmation so made shall be a legal and vahd marriage to all intents 
and purposes and no other marriage except as hereinafter pro- 



Eeqina v. 
Bakton. 

Lutwyohe J. 



Harding J. 



148 



QUEENSLAND JUSTICE OF THE PEACE. 



Eegina v. 
Bakton. 

Harding J. 



vided shall be valid for any purpose." Now, what is referred to 
by the words ' as aforesaid,' do they refer to the qualification, 
of the minister or registrar alone or coupled with the celebration ? 
I take it that they do not refer to the qualification of the minister 
or registrar alone,— the word ' such ' before the words ' minister 
or registrar ' would have been sufficient for that without the 
words ' as aforesaid,' consequently it refers to every marriage 
which shall be celebrated — that is, the fact of celebration — in. 
short, any marriage accomplished or through which the form 
has been gone. Returning to the proviso, it has no effect until 
the marriage is celebrated, in fact, it recognises under what has 
gone before that a marriage may be celebrated at any time 
legally, and then it purports to avoid such marriage after cele- 
bration if celebrated between the hours mentioned. The cele- 
bration of the marriage, which must be complete before the 
proviso takes effect, is legahsed by s. 12 — this is exactly the 
opposite to the proviso — the proviso and s. 12 are therefore 
actually repugnant, and the proviso as an imperative enactment 
must give way to the 12th section and consequently be construed 
as being directory only ; it certainly does not avoid the marriage. 
I answer the first question in the negative. 

Then with regard to the second question and the point which 
has arisen upon the case itself. The second marriage appears 
to have been celebrated in England, outside the Hmits of the 
jurisdiction of this colony. Now by the Charter of Justice Act, 
9 Geo. IV., c. 83, s. 24, the laws of England then in force were 
given to the colony of New South Wales. During the session 
of ParUament in which that Act was passed there had also been, 
passed the Act, 9 Geo. IV., c. 31 — " The Injuries to Persons Act." 
The 22nd section of that Act relates to bigamy, and in effect 
enacts that any person marrying during the hfe of the former 
husband or wife shall be guilty of felony, whether the second 
marriage shall have taken place in England or elsewhere. That 
being the law the case of Reg. v. Packer (3 N.8.W. Reports 40) 
arose in New South Wales before Separation, and came before the 
Supreme Court of that colony upon a special case stated by His 
Honor Sir Alfred Stephen. The prjpcipal facts of the case need 
not be mentioned except so far as the question raised by the 
Chief Justice in the 8th par. : " After the verdict I announced 
that I should reserve also the point following of my own authority. 
The statute of Geo. IV., c. 31, which contains the enactment 
in force in this colony on the subject of bigamy was appUed to 



CRIMINAL EEPORTS, 1860—1907. 



149 



New South Wales and Tasmania by the Act of the British Parha- 
ment, 9 Geo. IV., c. 83, s. 24, being the general extending section 
applicable to both colonies. But it occurs to me as deserving 
consideration, whether the effect of the statute, 9 Geo. IV., c. 31, 
s. 22, so extended to New South Wales as aforesaid, makes the 
offence of marrying in Tasmania, for instance, cognizable and 
punishable in New South Wales. I submit this question for the 
opinion of the Court, together mth the others which were raised 
at the instance of the prisoner's counsel." So it appears that at 
that tim.e, when this colony formed part of the colony of New 
South Wales, the doubt, whether under the Imperial Statute the 
Court had jurisdiction was exploded by the decision in this case, 
at page 48. The Chief Justice, in his judgment, says : — " The 
doubt which I suggested at the trial has been removed by further 
considering the words of the statute creating this offence. That 
statute was, by the 9 Geo. IV., c. 83, incorporated in our laws, 
and is therefore the law of the colony. If the enactment has been 
passed by a colonial legislature it would have no force as to 
marriages contracted elsewhere than in the colony legislating. 
But the British ParUament has legislative authority over aU the 
colonies, and over all British subjects everywhere. I think, 
therefore, that the courts of this colony have jurisdiction over the 
offence, although committed out of the colony." That case was 
subsequently followed by Reg. v. Rogers, 9 N.S.W. Reports, 34. 
Since then the legislature of this colony, I assume, with a know- 
ledge of the law and the effect of these decisions, has by subsequent 
enactments done something which has had the effect of lessening 
or diminishing the jurisdiction of this Court, as I hold there 
can be no doubt as to the meaning of the legislature when it 
passed The Criminal Statutes Repeal Act of 1865. Before it 
had passed that Act it had passed The Offences against the Person 
Act of 1865, the 58th section of which relates to bigamy. That 
Act in that section merely took the corresponding section of the 
EngUsh Act, 9 Geo. IV., c. 31, and altered the word " England " 
to " Queensland," and otherwise adapted it to this colony. The 
Criminal Statutes Repeal Act of 1865 recites, that by several Acts 
of the then present session of Parliament of which The Offences 
against the Person Act formed one, divers Acts and parts of Acts, 
amongst which 9 Geo. IV., c. 31, was included, have been con- 
soUdated and amended, and that it is expedient to repeal the 
enactments so consolidated and amended, and proceeds to repeal 
amongst others the Act 9 Geo. IV., c. 31. Consequently, this 



Rbgina II. 
Barton. 

Harding J. 



150 QUEENSLAND JUSTICE OP THE PEACE. 

Ebgina v. 22nd section of 9 Geo. IV., c. 31, was swept away, and being swept 
t ' away nothing remained but the enactment passed by the colonial 

Harding J. legislature — namely. The Offences against the Person Act of 1865, 
which has no force in respect of marriages contracted beyond 
the colony. Should this conviction be sustained, another difficulty 
strikes my mind. A prisoner who has once suffered his punish- 
ment is entitled to plead that he has been convicted and sufiered 
the puishment, and is not liable to be again convicted for the same 
offence. Now in another British possession some distance away 
from here, supposing this man was tried again, he would say 
that he had been already tried and convicted, and had suffered 
his punishment in this colony under the ConsoUdated Act. The 
Court trying him would say it was beyond the power of the 
Queensland legislature to enact an Act whereby a crime, which 
is local, and which had been committed outside their jurisdiction, 
is made amenable to the laws of Queensland, and he would be 
convicted and punished ; and so he might be tried and punished 
in every place of Her Majesty's dominions where there is a separate 
jurisdiction. The strange result of this legislation seems to be 
that this is the only part of Her Majesty's dominions where this 
man is safe. The answer I give to the second question is, that 
this Court has no jurisdiction. 

Attorney for the prisoner : N orris. 



[In Chambers.] 
REGINA V. McMURDO AND DAVIES. 

[2 Q.L.J. 10.— Note.— See also R. v. Pierson, Ex parte Small, 1906 S.R.Q. 5, and 
McKelvey v. Meagher, 4 C.L.R. 265.] 

1884. Fugitive Offenders Act of 1881 — Foreign Jurisdiction Acts. 

Her Majesty has, within the jurisdiction of the High Commissioner for the 

Lilley C.J. Pacific, dominion within the meaning of the Fugitive Offenders Act of 1881. 

Held, that in this case the prisoners were fugitives from that part of Her Majesty's 
dominions, and that there was jurisdiction to arrest them within this colony and 
to return them to the High Commissioner. Held, also, that the warrant under 
which the prisoners were arrested and its endorsement were in all respects 
sufficient. 

This was a return to a writ of habeas corpus. The facts of the 
case appear sufficiently from the judgment. 

The writ was obtained on the following grounds : — (1.) That 



CRIMINAL REPORTS, 1860—1907. 



151 



the warrant under which the prisoners were arrested did not 
disclose any offence within the meaning of the Fugitive Offenders 
Act of 1881. (2). That it did not appear upon the face of the 
warrant that the prisoners were fugitives, within the meaning of 
the Act. (3.) That the endorsement of the Governor did not 
disclose, and there was no evidence to show, that the Governor 
was satisfied that the warrant was issued by some person having 
authority to issue the same. (4.) That the warrant was not 
properly authenticated ; and (5) that the warrant was not issued 
by a person having authority to issue it. 

Rutledge A.O. and Chvbh Q.C. appeared for the Crown and 
for the High Commissioner of the Pacific. Power appeared for 
the prisoners. 

The Attorney -General contended that the warrant itself disclosed 
an offence within the meaning of the Fugitive Offenders Act of 
1881, namely that of arson. Section 9 provided that it should 
" apply to the following offences, namely, to treason and piracy, 
and to every offence, whether called felony, misdemeanour, 
crime, or by any other name, which is for the time being punish- 
able in the part of Her Majesty's dominions in which it is com- 
mitted, either on indictment or information, by imprisonment 
with hard labour for a term of twelve months or more, or by any 
greater punishment." That in the place where the offence 
was committed there was no local statute which declared that 
arson was a felony, but that the Order-in-Council of 1877 provides 
for the estabUshment of the High Commissioner's Court, and that 
s. 23 of that Order, when taken in conjunction with s. 27, gives 
the High Commissioner's Court power to deal with offences 
committed within the High Commissioner's jurisdiction, and to 
give the punishment awarded by the English law for the time 
being. That the law of England makes arson a felony, and 
punishable by more than twelve months imprisonment, and 
therefore it is an offence within the provisions of the Act of 
1881. That there being jurisdiction on the part of the High 
Commissioner's Court to punish offences under s. 9 of the Fugitive 
Offenders Act of 1881, he submitted that the warrant which 
had been issued for the arrest of the prisoners, was good 
and unimpeachable, that the warrant was precisely such 
a warrant as would be issued in England for the 
crime of arson, and that on the first ground the contention 
on the part of prisoners was untenable. On the second 
ground, he contended that it was not necessary to show in the 



Beqina v. 

MoMttRDO AND 

Davies. 



152 QUEENSLAND JUSTICE OF THE PEACE. 

Begina r. warrant that they were fugitives. The fact that the warrant is 
Davies. to ^^ backed by a magistrate, by the Governor in this case, 

shows that the person whose arrest was sought was a fugitive 

from the place where the offence was committed. It might 
be contended on behalf of the prisoners that they were not " found " 
within the meaning of the second section of the Act, one of them 
having been brought from Adelaide. He submitted that a man 
was " found " where he was actually present at the time, and that 
although in the present case one of the prisoners is not in Queens- 
land voluntarily he is nevertheless under s. 2 " found " in this 
colony. Reg. v. Lopez, 27 L.J., M.C., 48. Whether the prisoners 
were fugitives within the meaning of the statute would depend 
upon the question whether the High Commissioner had authority 
to issue a warrant for the apprehension of fugitives from the 
Westem|Pacific. [|v;^|^ 

[i^I'Ae Chief Justice : It is enough for me that Her Majesty 
has established civil and criminal jurisdiction, and appointed 
officers to exercise that jurisdiction over all the islands in the 
Western Pacific, not being within the jurisdiction of any civilised 
power. I have no doubt the High Commissioner has power 
to issue the warrant. Then the question arises whether s. 2 
appUes to the return of prisoners from the colony of Queensland 
to the jurisdiction of the High Commissioner. I have no doubt 
about that, if the procedure is right and the warrant and all its 
requisites are properly set out. I cannot go behind the warrant. 

The Attorney-General said he would not trouble His Honor 
further upon the question of jurisdiction. Then as to the third 
point, he submitted that there was nothing in the Act to suggest 
how the Governor was to endorse upon the back of the warrant 
that he was satisfied. The mere fact of his signing his name 
was proof that he was satisfied, and that it must be taken that 
the Governor, in endorsing the warrant, had acted rightly. That 
the satisfaction was a thing in the Governor's mind, and he 
communicated the effect of that satisfaction by endorsing the 
warrant in the prescribed manner. As to the fourth point, he 
contended that the seal of the Court of the High Commissioner 
showed that the warrant was properly authenticated. The fifth 
point, he submitted, was covered by the ground already gone 
over. 

Chubb Q.C. contended as follows : 1. The warrant sufficiently 
discloses a criminal offence within s. 9 of the Fugitive Offenders Act 
of 1881. Technicality in charging the offence was not required 



CEIMINA.L REPORTS, 1860—1907. 153 

by the Act. No objection could be taken to proceedings for Eeoina v. 
want ot torm ; Order-m-CounciI, 1877. A warrant m general Daties. 

terms is sufficient. Ex parte Terraz, 4 Ex. D., 63. The offence 

is arson, and is properly stated. 2. The prisoners are fugitives. 
Foreign Jurisdiction Act, 1878, ss. 3, 5. Order-in-Council 1879, 
No. 15. Fugitive Offenders Act, 1881, ss. 2, 36. 3. The warrant 
is properly authenticated. It has the seal of the High Com- 
missioner's Court, which is a superior court — Order-in-Council, 
1879, No. 15. It is therefore a judicial proceeding of which this 
Court wiU take judicial notice, and is proved by the seal. Evidence 
and Discovery Act, s. 39. There is a conclusive presumption in 
favour of the regularity of judicial proceedings 1 Taylor on Evidence, 
101. The warrant requires no signature — Order-in-Council, 1877, 
No. 16, 135, and Form 5, warrant and Order-in-Council, 1879, 
No. 6 — but must be sealed. 4. It will therefore be presumed 
to have been issued by a person duly authorised. 5. The endorse- 
ment by the Governor is evidence of satisfaction. It will be 
presumed that he has acted rightly — omnia proesumuntur, &c. 
Endorsement is in his discretion, which this Court will not, if it 
could, review. It is a question of the quantum of evidence suffici- 
ent to satisfy, of which the Governor is the judge. Beg. v. 
Maurer, 10 Q.B.D., 513. 

Power submitted that the Crown must satisfy his Honor 
beyond any reasonable doubt that the persons seeking to detain 
these prisoners had authority by law to do so, that it was quite 
clear from the statutes and Orders-in-Council that a great differ- 
ence existed between Her Majesty's jurisdiction in Her own 
dominions and in islands not under civilised power. He cited the 
preamble to the Fugitive Offenders Act, and s. 2, and contended 
that the words " an offence committed in one part of Her 
Majesty's dominions," and to the offenders " leaving that part 
and being found in another," meant part of Her Majesty's domin- 
ions as distinct from the Western Pacific Islands, over which she 
exercises power and jurisdiction. By s. 6, the fugitive is to 
be returned to that part of Her Majesty's dominions from which 
he is a fugitive, but he took it that it was not intended in this 
case to return these men to the Laughlan Islands, which are 
not within Her Majesty's dominion, but to take them to the 
capital of Fiji. - Section 8 provides that after he is taken back he 
must remain in the place for six months. Section 9 declares that 
the offence must have been originally committed within Her 
Majesty's dominion. That no Order-in-Council had been made 



154 QUEENSLAND JUSTICE OP THE PEACE. 

Eegina v. under s. 36, and that there must be a special Order-in-Council 
Davies, made after the Act was passed. That the warrant ought to have 

set out that the offence was one punishable with twelve months 

imprisonment or more. That the authentication of the warrant 
must be proved. That the endorsement must shew that the 
Governor is satisfied that the warrant was issued by some person 
having authority in manner provided by s. 26 of the Act. He 
referred to Nash's case, 4 5. cfc Aid. 295, and Deybel's case, ibid., 
243, to show that it was necessary to state what proof was given. 

Chubb Q.C., in reply : " Dominions," in the 2nd section of the 
Fugitive Offenders Act of 1881, not only means the territorial 
dominions of Her Majesty but the parts and places not within 
the dominions where she exercises power and jurisdiction. The 
Fugitive Offenders Act of 1843, ss. 1, 2. It is settled usage that, 
as a general rule, persons belonging to a state cornmunity, when 
in places not within the territorial jurisdiction of any power, 
are in the same legal -position as if on the soil of their own state. 
Hall on International Law, 207. The Foreign Jurisdiction Act 
of 1878, s. 3, empowers the Queen-in-Council, by order, to extend 
the Act of 1843 and other Acts mentioned in the schedule, or any 
Acts in force for the time being, amending or substituted for 
the same to any country or place to which for the time being 
the Act of 1843 applies, whereupon such country or place assumes 
the character of a colony, with Her Majesty-in-Council as its 
legislature ; and the 5th section of the same Act extends the Act 
of 1843 over Her Majesty's subjects resident in or resorting to 
countries or places not under regular Governments. The Court 
and jurisdiction of the High Commissioner was established by 
Order-in-Council in 1877. A further Order-in-Council in 1879 
extended the Act of 1843, or so much of it as was in force, or any 
Act amending the same or in substitution for it, to the Western 
Pacific Islands. Then came the Act of 1881, in substitution 
for the Act of 1843, which it repealed. The Acts of 1843 and 
1878, with the Order-in-Council of 1877, were sufficient in them- 
selves to constitute the Laughlan Islands " dominions " within 
the meaning of the Act of 1881, but if not, the Order-in-Council 
of 1879 apphed the Act of 1878 as an amending statute, and 
prospectively the Act of 1881 as an Act in substitution for that of 
1843, and Her Majesty has thereby power aitd jurisdiction, 
which is " dominion," in those islands. 

His Honor reserved his decision and on June 4th delivered the 
following judgment : — 



CRIMINAL REPORTS, 1860-1907. 



155 



Lilley C.J. 



LiLLEY C.J. : The prisoners have been brought up on a writ ,,^5*'"* "■ 

. '^ 1 MOMUBDO ANI> 

oi habeas corpus, and upon that an application has been founded Davies. 

for their discharge. They were arrested by virtue of the followinsj 
warrant : — ■ 

To John Fowley, police officer, and other officers of this Court. 

William M'Murdo and Joseph Griffith Davies, British subjects, have this day- 
been charged before this Court for that they did, on or about the 8th April, in the 
year of our Lord 1883, at Laughlan Islands, such islands being islands in the 
Western Pacific Ocean, not being within the limits of any British colony, and 
not being within the jurisdiction of any civilised power, feloniously, unlawfully, 
and maliciously set fire to certain dwelling houses the property of one Tamiu and 
others, with intent thereby then to injure the said Tamiu and others, against 
the form of the statute in such case made and provided, and against the peace of 
Our Lady the Queen, Her Crown and dignity. 

Therefore you are hereby commanded in the name of Her Majesty Queen 
Victoria, forthwith to apprehend the said William M'Murdo, and to bring him 
before this Court to answer to the said charge, and to be further dealt with accord- 
ing to law. 

Then, that warrant bears the seal of the Court of the High Com- 
missioner for the Western Pacific. This warrant was issued by 
the Court of the High Commissioner of the Western Pacific, 
and is to be enforced, if at aU, by virtue of the Fugitive Offenders 
Act of 1881. By s. 2 of that Act it is enacted — 

Where a person accused of having committed an offence (to which this part 
of this Act applies) in one part of Her Majesty's dominions has left that part, such 
person (in this Act referred to as a fugitive from that part) if found in another 
part of Her Majesty's dominions, shall be liable to be apprehended and returned 
in manner provided by this Act to the part from which he is a fugitive. 

A fugitive may be so apprehended under an endorsed warrant or a provisional 
warrant. 

The warrant bears the Governor's endorsement, under s. 3, which 
endorsement is as follows : — 

To all constables of police for the colony of Queensland. 

These are to authorise you to execute the within warrant within the said colony, 
by apprehending the within-named William M'Murdo, and bringing him before 
William Henry Day, Esq., acting police-magistrate at Brisbane, or some other 
police-magistrate of the said colony, to be dealt with according to law. 

Given under my hand, at Government House, this 15th day of May, 1884. 

A. MusOKAVE Governor. 

S. W. Griffith. 

The warrant in the case of Davies is in exactly similar words. 
Both are in Uke form, arid bear the Hke endorsement. By s. 3 
it is enacted that the Governor of a British possession, " if satis- 



156 



QUEENSLAND JUSTICE OP THE PEACE. 



Eegina u. 
MoMuBBO iND 

Davies. 
Lilley C.J. 



fied that the warrant was issued by some person having lawful 
authority to issue the same, may endorse such warrant in manner 
provided by this Act, and the warrant so endorsed shall be a 
sufficient authority to apprehend the fugitive in the part of Her 
Majesty's dominions in which it is endorsed, and bring him before 
a magistrate." On the prisoners' behalf it has been contended 
that it does not appear that they are fugitives within the meaning 
of that statute, on the ground that they have not left any part 
of Her Majesty's dominions, and that the offence was not com- 
mitted within any part of Her Majesty's dominions within the 
meaning of the statute. Upon this the question of jurisdiction 
has been raised ; whether the power and jurisdiction of Her 
Majesty within the Western Pacific Islands exercised by the 
High Commissioner is included within the word " dominion " 
in the Fugitive Offenders Act, and whether the prisoners can be 
treated as fugitives from any part of Her Majesty's dominions ? 
The solution of this question depends upon the nature of Her 
Majesty's power or jurisdiction within the Western Pacific 
Islands. I shall consider the question entirely in connection 
with the Foreign Jurisdiction Acts, the Western Pacific Orders-ia- 
Council, and the Fugitive Offenders Act of 1881. The Foreign 
Jurisdiction Act of 1843 is described as " an Act to remove doubts 
as to the exercise of power and jurisdiction by Her Majesty 
within divers countries and places out of Her Majesty's dominions, 
and to render the same more effectual." After reciting — 

That byftreaty,f capitulation, grant, usage, sufferance, and other lawful means, 
Her Majesty hathfpower and jurisdiction within divers countries and rlacesTout 
of Her Majesty's dominions : And that doubts have arisen how far the exercise 
of such power and jurisdiction is controlled by and dependent on the laws and 
customs of this realm, and it is expedient that such doubts should be removed — 

by s. 1 it is enacted — 

That it is and shall be lawful for Her Majesty to hold, exercise, and enjoy any 
power and jurisdiction which Her Majesty now hath, or may at any time hereafter 
have, withinfanyfcountry or place out of Her Majesty's dominions, in the same 
and as ample a manner as if Her Majesty had acquired such power or jurisdiction 
by the cession or conquest of territory. 

By s. 2 it is enacted — 

That every act, matter, and thing which may at any time be done, in pursuance 
of any such power or jurisdiction of Her Majesty, in any country or ijlace out of 
Her Majesty's dominions, shall, in all courts ecclesiastical and temporal and 
•elsewhere within Her Majesty's dominions, be and be deemed and adjudged to be, 
in all cases and to all intents and purposes whatsoever, as valid and effectual as 



CEIMINAL REPORTS, 1860—1907. 



15T 



though the same had been done according to the local laws then in^oroe within 
such country or place. 

On the 13th August, 1877, by Order-in-Council, Her Majesty 
estabUshed civil and criminal jurisdiction within the islands 
of the Western Pacific, in pursuance of the Pacific Islanders 
Protection Acts of 1872 and 1875 and the Foreign Jurisdiction 
Acts from 1843 to 1875, and by virtue of any other powers in 
Her Majesty vested. By Article 5 of that Order-in-Council, 
the jurisdiction extends and applies to certain named islands, 
and to " all other islands in the Western Pacific Ocean not being 
within the Umits of the colonies of Fiji, Queensland, or New South 
Wales, and not being within the jurisdiction of any civilized power, 
and to the waters within three miles of every island or place 
aforesaid." By Article 6, subdivision 1, the order also applies 
to " all British subjects, for the time being, within the Western 
Pacific Islands, whether resident there or not." By Article 22 
it is provided that — 

Subject to the other provisions of this order. Her Majesty's criminal and civil 
jurisdiction exercisable in the Western Pacific Islands shall, as far as circumstances 
admit, be exercised on the principles of and in conformity with the statute and 
other law for the time being in force in and for England, and with the powers 
vested in and according to the course of procedure and practice observed by and 
before the courts of justice and justices of the peace in England, according to their 
respective jurisdiction and authorities. 

Then by s. 3 of the Foreign Jurisdiction Act of 1878 it is enacted 
that — 

(1.) It shall be lawful for Her Majesty the Queen-in-Council, if it seems fit, 
from time to time, by order, to direct that all or any of the enactments described 
in the first schedule to this Act, or any enactments for the time being in force 
amending or substituted for the same, shall extend with or without any exceptions, 
adaptations, or modifications in the order mentioned to any country or place to 
which for the time being the Foreign Jurisdiction Ad, 1843 applies. 

(2.) Thereupon those enactments shall operate as if that country or place were 
one of Her Majesty's colonies, and as if Her Majesty-in-Council were the Legis- 
lature of that colony. 

It has been contended that this section enables Her Majesty 
to make an Order-in-Council of a prospective character (as it is 
called) giving effect not only to statutes in existence at the time 
of promulgating the Order-in-Council, but to statutes that may 
be thereafter passed. I am unable to construe the statute in that 
way, and if the Fugitive Offenders Act of 1881 depends upon the 
'prospective force of the Order-in-Council of 1879 (which was 



Eeoina v. 

MoMdrdo and- 

Davibs. 

Lilley C.J. 



158 QUEENSLAND JUSTICE OF THE PEACE, 

Eegina 0. passed by virtue of this 3rd section), upon subsequent legislation 

McMCBDO AND '^ "^ ., j-i-i, r 

Davies. I am of opinion that it has no force within the colony of Queens- 

-. ... ' J land in respect of proceedings commenced within the Western 
Pacific jurisdiction ; in other words, that the statute does not 
authorise the appUcation of prospective legislation by Order-in- 
Council. However, I think that in this case the jurisdiction 
under the Fugitive Offenders Act of 1881 does not need the support 
of the Order-in-Council of 1879. If it did, I should hold that that 
support would fail, inasmuch as the language of the statute of 
1878, and even the words of Article 15 of the Order-in-Council 
of 1879, do not appear to me to bear a construction giving effect 
to a statute to be thereafter passed unless a special Order-in- 
Council should be issued after the passing of the substituted 
statute. No Order-in-Council has been issued under s. 36 of the 
Fugitive Offenders Act of 1881 applying it to this jurisdiction 
of the High Commissioner. With regard to the Fugitive Offenders 
Act of 1881, 1 rest my decision on such parts of it as do not require 
the support of any Order-in-Council. It seems to me, neverthe- 
less, that irrespective of this omission to issue an Order-in-Council 
under s. 36, and irrespective of the Order-in-Council of 1879, the 
Fugitive Offenders Act of 1881, or at least all such parts of it as do 
not need for their operation the support of the alleged prospective 
authority of the Order-in-Council of 1879, but rest simply upon 
the force of the statute of 1881 itself, are in operation within 
the Western Pacific Islands and within this colony. By s. 5 
of the Foreign Jurisdiction Act of 1878 it is enacted that — 

In any country or place out of Her Majesty's dominions, in or to which any of 
Her Majesty's subjects are for the time being resident or resorting, and which is 
not subject to any Government from whom Her Majesty might obtain power and 
jurisidiction by treaty or any of the other means mentioned in The Foreign Juris- 
diction Act, 1843, Her Majesty shall, by virtue of this Act, have power and juris- 
diction over Her Majesty's subjects for the time being resident in or resorting to 
that country or place, and the same shall be deemed power and jurisdiction had 
by Her Majesty therein within The Foreign Jurisdiction Act, 1843. 

Now, in my opinion, by the force of ss. 1 and 2 of the Foreign 
Jurisdiction Act of 1843, and of the Order-in-Council of 1877, 
and of ss. 3 and 5 of the Foreign Jurisdiction Act of 1878, Her 
Majesty has within the jurisdiction of the High Commissioner for 
the Pacific dominion within the meaning of the Fugitive Offenders 
Act of 1881, and that the prisoners are fugitives from that part 
of Her Majesty's dominions, and that there is jurisdiction to 
arrest them within the colony of Queensland, and to return them 



CRIMINAL REPORTS, 1860-1907. 



159 



to the jurisdiction of the High Commissioner upon the endorsed 
warrant, if the instrument itself and its endorsement are in other 
respects sufficient. By force of the Foreign Jurisdiction Acts, and 
of the Orders-in-Counoil, there is as much of the "territorial" 
element in this " dominion," " power," or " jurisdiction " as 
is essential to uphold and exercise it. Upon the question of the 
sufficiency of the warrant, it was first contended that it does not 
disclose an offence within the meaning of the Fugitive Offenders 
Act of 1881, s. 9, inasmuch as it does not appear on the 
face of that warrant that the offence is punishable by im- 
prisonment with hard labour for a term of twelve months 
or more, or by any greater punishment. The warrant aptly 
describes in appropriate and technical words the offence of 
arson as it would be described in a similar instrument for 
the arrest of an accused person in England or this colony. 
Now by Article 27 of the Order-in-Council of 1877, the Court of 
the High Commissioner by the Judicial Commissioner has power 
to adjudge any such punishment as any court of criminal juris- 
diction in England has. for the time being power to adjudge, and the 
Court by the High Commissioner or a Deputy-Commissioner 
has a Umited power of punishment for any term not exceeding 
twelve months, with or without hard labour. The Fugitive 
Offen^rs Act, s. 9, uses the words " That the Act shall apply 
to offences punishable in the part of Her Majesty's dominions 
in which it was committed by imprisonment with hard labour 
for a term of twelve months or more or any greater punishment." 
The warrant and the Order-in-Council, of which I am bound 
to take judicial notice, therefore show that the offence is one 
clearly within the terms of s. 9 of the Fugitive Offenders Act, 
and on this point the warrant must be held to be sufficient. 
In the English case of A.B., cited from the despatch of the 29th 
June, 1883, the colonial law required to be proved, and the 
distinction is that, in this case, it is judicially noticed. The 
second point, on the sufficiency of the warrant, is that it is not 
properly authenticated. Section 29 of the Fugitive Offenders Act 
of 1881 declares that warrants shall be deemed duly authenticated 
for the purposes of the Act if they are "authenticated in the 
manner provided for the time being by law." By Article 32 
of the Order-in-Council of 1879, judicial notice is, as I have said, 
to be taken of that Order and of the principal Order of 1877, 
and of all seals used thereunder, and, on reference to the schedule 
to the Order of 1877, I find that a warrant in the first instance 



Beoina v. 

MoMUEDO AND 

Davies. 
Lilley C.J. 



160 



QUEENSLAND JUSTICE OF THE PEACE. 



EEoraA V. 

McMuBDO AND 

Davies. 
Lilley C J. 



for the apprehension of an accused is to be issued by the Court 
and to bear the seal. I must take judicial notice of the seal 
(Article 32, Order of 1879) and presume that it was appended, 
and the warrant issued by a person having lawful authority 
to issue the same, and this determines the third and fourth point, 
which latter was that the warrant was not issued by a person having 
authority to issue the same. The fifth point raised was that the 
endorsement does not show that the Governor was satisfied that 
the warrant was issued by some person having lawful authority 
to issue the same. This point is in some degree analogous to the 
contention that where a statute authorises a justice of the peace 
to endorse a warrant upon ;^roof on oath of the handwriting 
of the justice granting the warrant, the endorsement itseK 
should aver that such proof had been given. The contention here 
being that the Governor should have averred that he was satisfied 
as required by the Act. It has not been decided in England that 
such averment is necessary, although no doubt if made it would 
give a more assured warrant. This point was raised in England 
in the case of Atkins v. Kilby, 11 A. and E. Ill, before Baron 
Parke. Without deciding it the learned Baron said " he thought 
that he must presume the magistrate to have acted rightly, and 
on the requisite proof." I think I must do so here, and presume 
that the Governor discharged his duty as required by the statute, 
and that he was satisfied that the warrant had been duly issued 
before he placed his endorsement upon it. The case for the 
prisoners fails on aU points, and I remand them to custody under 
the endorsed warrant. 

The prisoners were remanded to custody accordingly. 

Solicitors for prisoners : Hart, Mein, & Flower. 
Solicitor for Crown : Grown Solicitor. 



1884. 
October. 



[Full Cottet.] 
CURRAN V. DOWZER AND OTHERS. 

[2 Q.L.J. 45.— Note.— 35 Vic, No. 4, s. 28 is repealed. See now s. 448 of Criminal 

Code.] 

Brands Act (35 Vict. No. 4, s. 28). 

The word '" wilfully " in the 28th section of The Brands Act means knowingly 
and intentionally. 

This was a motion to make absolute a rule nisi for a prohibition 
granted by His Honour Mr. Justice Harding, at the instance 



CRIMINAL REPORTS, 1860-1907. 



161 



of John Curran against James Dowzer, Jonathan Job, and 

Frederick Edward Bull, JJ.P., and George William Roebuck, 

Inspector of Brands for the Wide Bay District. Six head of 

female cattle, the property of Curran, were found by the Inspector 

of Brands bearing a brand which had been altered, a portion 

of one brand having been imprinted over the corresponding 

portion of a previously imprinted brand. The original brand 

was the registered brand of Curran, and the brand as altered 

represented a brand registered by Curran in the name of his son. 

There was evidence that the brand had been altered by Curran, 

but no improper motive was alleged. The bench, consisting of 

Dowzer, Job, and BuU, convicted Curran of having wilfully 

permitted his registered brand upon six head of female cattle 

to be altered by the impressing of the registered brand of his son 

upon the top of his brand, and fined him 5s. per head of stock so 

branded, and £1 5s. 8d. costs. • 

Drake moved the rule absolute, and the Attorney-General and 
Real appeared to show cause on behalf of Roebuck. 

The Attorney-General submitted that in order to sustain a 
conviction under the 28th section of the Brands Act it was only 
necessary to show that the brands had been altered by Curran ; 
it was not necessary to show that the brands had been blotched 
or defaced. There was evidence that Curran had imprinted 
the second brand and the fact that only a portion of the second 
brand had been used was evidence of an intention to alter the 
original brand. The fact that no particular reason for the 
alteration had been alleged was no answer to the charge. 

Vickers v. Sellheim and Others {Q.L.J. Vol. I., p. 131) and 
Gully V. Smith (12 Q.B.D. p. 121) were cited and commented on. 

Real contended that the imprinting of the second brand upon 
the first being a breach of the statute, it was not necessary to show 
any motive for making the alteration. It would not be difficult, 
if necessary, to suppose a reason for the alteration. For instance, 
under the operation of the Insolvency Act a question of ownership 
might be raised and in that case the state of the brand would 
become of importance. 

Drake submitted that the word " wilfuUy " imported some- 
thing more than mere consciousness of performing an act ; some 
wrong motive must be shown. One brand could not be placed 
over another without making an alteration, and therefore, if the 
act of knowingly placing one brand over another were an offence 

L 



CUBK\N V. 

DOWZEK AND 

OXHEBS. 



162 



QUEENSLAND JUSTICE OF THE PEACE. 



CUBBAN V. 

DOWZER AND 

OlBEBB. 



LiUey C.J. 



under the 28th section, the word " wilfully " might be struck out 
of the statute. No improper motive had been alleged, and there 
was sufficient evidence to rebut any presumption of fraud. By 
the 29th section of the Act, cattle bearing brands so altered 
are liable to be impounded as unbranded stock ; it was therefore 
against the interest of Curran to alter the brands on his own stock. 
The act of placing one brand over another is an offence under 
the 18th section of the Act as being a non-compliance with the 
rules contained therein, and Curran should have been convicted, 
if at all, of an offence under that section. 

LiLLEY C.J. : We think that the rule must be discharged, 
and I think with costs. The meaning of the 28th section is, to 
my mind, perfectly clear. If a person wilfully alters a brand or 
wilfully permits a brand to be altered, he incurs the penalty 
provided by the statute for such misconduct. The word ''wil- 
fiilly" in this section seems to me to mean knowingly and inten- 
tionally. If a man knowingly alters a brand, intending that there 
should be an alteration of it, then he has done that act wilfuUy and 
cannot plead as an excuse for such conduct that he did not know 
his act was prohibited by statute. The magistrates before whom 
the case was brought had reasonable evidence from which they 
could find that there was a wilful permission of alteration of a 
brand within the meaning of the statute. It is such a question 
as would be submitted to a jury ; and there being evidence from 
which reasonable men would come to the conclusion that there 
had been a wilful alteration of the brand, they were justified 
in coming to that conclusion. The judgment must be upheld. 
The rule, therefore, will be discharged with costs. 

Solicitors for applicant : Wilson ds Wilson. 
Solicitor for Roebuck : Crown Solicitor. 



1884. 
October. 



[Full Court.] 
REGINA V. HOPKINS AND EATON. 
[2 Q.L.J. 47.— Note.— 40 Vic, No. 10, ss. 1 and 2 are repealed. See now s. 2 of 
Oaths Act Amendment Act of 1884 (48 Vic, No. 19).] 

Oaths Act Amendment Act of 1876 (40 Vic, No. 10), Declaration. 

Under the Oaths Act Amendment Act of 1876 it is for the Judge to be satisfied 
at the trial that the witness understands the nature of the declaration substantially. 

This was a special case stated by Mr. Deputy-Judge Mansfield. 
The facts, as stated, so far as they are material, were as follows : — 



CRIMINAL REPORTS, 1860—1907. 



163 



The prisoners were tried at the Northern District Court, 
Charters Towers, on July iOth, 1884, on a charge of horse-steahng. 
Charhe, an aboriginal, was tendered as a witness for the Crown. 
No interpreter was present, or available. Charlie knew enough 
EngUsh to understand and speak easy words. The presiding 
Judge was satisfied that an oath would have no binding efiect 
on Char he's conscience. It was impossible to make Charlie 
understand the actual words of. the declaration set out in s. 1 
of the Oaths Act Amendment Act of 1876. In answer to the Judge, 
CharHe said he had come to tell the truth, and no he, and that he 
knew that if he did not tell the truth he would be sent to prison. 
The Judge was quite satisfied that CharUe understood that he 
bound himself to ,tell the truth, and that he was aware of the 
penalties he would incur if he did not do so. The Judge being 
then about to admit Charlie's evidence, GampbeU, prisoners' coun- 
sel, objected to its admission on the ground that CharUe had 
not taken a promise and declaration in the form stated in s. 1 
of the Oaths Act Amendment Act of 1876, or to the Uke effect, 
mutatis mutandis, as required by s. 1 of the said Act. The Judge 
admitted Charlie's evidence. Both prisoners were convicted. 

The questions for the opinion of the Court were : 1. Was 
the Judge right in admitting CharUe's evidence ? 2. Were the 
prisoners properly convicted ? 

Power (Campbell with him) appeared for the prisoners. Feez 
appeared for the Crown, in support of the conviction. 

Power contended that the witness CharHe could only speak 
easy words, and that no attempt was made to repeat the declara- 
tion to him, or to get it into his head. That it would be a fair 
interpretation of the case if CharUe could be prosecuted for perjury ; 
and that the Judge appeared to have acted upon the principle 
that he would take the evidence for what it was worth. Regina 
V. Tommy and George, Queensland Law Reports, vol. 1, part 2, 
■p. 14, was cited. 

Campbell foUowed. 

Feez was not called upon. 

LiLLEY C.J. : In this case it appears that the presiding Judge 
was satisfied of the first matter he had to determine— namely, 
that an oath would have no binding effect on the conscience of 
the witness, and further that it was impossible to make CharUe 
understand the actual effect of the words of the declaration in s. 1 
of the Oaths Act Amendment Act of 1876. But, in answer to 



Regina v. 

Hopkins and 

Eaton. 



Lillej C.J. 



164 



QUEENSLAND JUSTICE OF THE PEACE. 



Eegina v. 

Hopkins and 

Eaton. 

Lilley C.J. 



Harding J. 



the Judge, Charlie said he had come to tell the truth, and no he. 
That appears to me, to be in substance the ordinary witness' oath, 
that he had come to speak the truth, the whole truth, and nothing 
but the truth. But this declaration has added to the difficulties of 
witnesses who do not understand the effect of an oath, by requiring 
that they should know that they render themselves hable to the 
penalties of wilful and corrupt perjury. In this case, I think, 
substantially that, in popular language, the witness said that he 
did, because he said that if he did not tell the truth he would be 
sent to prison. But the Judge has certified something more in this 
case. It is for the Judge, under this statute, to be satisfied at 
the trial that the witness understands the nature of the declaration 
substantially, the fair interpretation of the language ; and the 
nature of the duty the Judge has to discharge has been determined 
in the case of Begina r. Tommy and George, decided in this Court, 
that the Judge has to determine as to the competency of the 
witness. If there is an omission of duty on the part of the Judge, 
the matter may be brought before this Court on a case reserved 
and stated by the Judge himself ; but where the Judge dis- 
charges his duty, he alone is to decide as to the competency 
of the witness within the meaning of the Act. The Judge has 
certified to us, and there is no reason to doubt that he was quite 
satisfied of the state of CharHe's mind at the time, and that 
Charlie understood and was aware of the penalties he would incur 
if he did not tell the truth. Under these circumstances, I think 
the Judge discharged his duty, the witness appeared to be com- 
petent, the requirements of the statute were satisfied, and the 
conviction must be affirmed. 

Harding J. : The solemn declaration required to be adminis- 
tered by the Oaths Act Amendment Act of 1876 is one of considerable 
difficulty, and certainly, although the Act requires the witness to 
solemnly promise, its administration is one of the most unsolemn 
proceedings that the dignity of the court has to submit to. 
Generally, having an ignorant black witness talking a species of 
pigeon English, every word he says producing a disturbance in 
the court. To my mind the proceeding is very unsatisfactory, 
but being the law of the land, that law has to be administered. 
In the administration of that law, as in other matters of detail, or, 
so to speak, of administration, great latitude rests in the hands of 
each Judge. Some Judge's minds are more technical than others ; 
other Judges take larger and more general views, but by the 
joining of such different minds together probably the true aim of 



CRIMINAL REPORTS, 1860-1907. 



165 



the Act is obtained in the end. Bearing this in mind, and the 
latitude allowed to each Judge, the question to be decided is. 
Has the law been satisfied in that particular case ? In this case, 
as I take it, there are, as Mr. Campbell mentioned, three detailed 
steps required. First, that the presiding Judge is to be satisfied 
that the taking of an oath will have no binding effect on the 
conscience of the proposed instrument of evidence. In this case 
it is definitely stated that the presiding Judge was satisfied that 
an oath would have no binding effect on Charlie's conscience. 
So that is the first step satisfied. The next step is that the pro- 
posed instrument of evidence^ or witness, is to make a promise or 
declaration in the form given in the Act, or to a like effect, mutatis 
mutandis. I will read the words of the late Mr. Justice Lutwyche 
in the case of Regina v. Tommy and George, Q.L.R., vol 1, part 2, 
p. 18. " I think they were. The words, ' to the like effect, 
mutatis mutandis,' in the first clause, clearly show that it is not 
necessary that there should be a literal declaration by the witness 
in the form given by the Act." Not necessary to be a Uteral 
declaration. With that I agree. Here one of the difficulties 
would greet a Judge of technical mind. Such a Judge would go 
through the actual form simply as a form ; but going through 
that would be of no use at aU, if the requirements of the statute 
were not satisfied. Now, if it is to be a Uteral declaration, find 
out first of all what a hteral declaration is. A solemn promise to 
speak the truth ; that is what it amounts to. Secondly, that the 
proposed witness makes the solemn promise or declaration with 
the fuU knowledge that, if he does not speak the truth, I will 
render myself Hable to the penalties of wilful and corrupt perjury. 
That is a technical declaration. What is the Uteral ? I am not 
going to tell what is false ; I am going to tell what is true, and I 
am perfectly aware if I tell what is false and do not tell what is 
true I shall be punished. That is the Uteral. In this case the 
Judge says it was impossible to make CharUe understand the 
words in the declaration ; that is to say, it was impossible to 
make him understand them -as technicaUy placed. The Judge 
goes on — " in answer to the Judge, CharUe said he had come to 
ten the truth, and no Ue, and knew that if he did not teU the truth 
he would be sent to prison." That is the Uteral. That actually 
occurred. There you have the two steps — first, the satisfaction 
of the Judge that an oath would have no binding effect on the 
witness ; second, an actual compUance with the requirements of 
the law— a literal compUance. Then the third requisition of 
the law is that it shaU be the duty of the presiding Judge, before 



Begina v. 

Hopkins and 

Eaton. 

Harding J. 



166 



QUEENSLAND JUSTICE OF THE PEACE. 



Begina v. 

Hopkins and 

Eaton. 

Harding J. 



taking the evidence of any such person, to satisfy himseK that he 
clearly understands the meaning of such promise and declaration. 
Did the Judge do that in this case ? In his statement of the case 
he says that he was quite satisfied that CharUe bound himself to 
tell the truth, and was aware of the penalties he would incur if 
he did not do so. There are the three requirements ; each of 
them to my mind was satisfied in this case, and, that being so, I 
think the law has been complied with, and that the conviction 
must be affirmed. 

Solicitor for Crown : Crown Solicitor. 
SoUcitors for prisoners : Macpherson ds Mishin. 



1885. 
March. 



[Full Court.] 
WILLIAMS V. BAIRD AND OTHERS. 

[ 2 Q.L.J. 60.— Note.— 35 Vie., No. 4, s. 27 is repealed. See now s. 447 of Criminal 
Code. As to bona fide claim of right, see now s. 22 of Criminal Code.] 

TU Brands Act of 1872 (35 Vict. No. 4) sec. 27. 

A hona fde claim of right of property is a good defence to a charge of illegally 
branding under s. 27 of the Brands Act of 1872. 

This was a motion to make absolute a rule nisi for a prohibition 
granted by Mr. Justice Harding, at the instance of John WilUams, 
against James Clark Baird, Edmund Bellord Power, John Davis, 
and John Clunn, of Cooktown, JJ.P., and Dominick Brannighan, 
of Hidden Valley, near Cooktown, selector. Brannighan claimed 
to have lost a bull calf with its mother in a scrub whilst driving 
them with a mob of cattle, on January 27, 1884. The calf was 
then unbranded ; and he did not see it or the mother until the 
middle of the following December, when he saw both in a mob of 
Williams' cattle, and the calf had Williams' brand upon it, and 
was earmarked. He took both to his yard, where WiUiams saw 
them, but did not see the calf suckling Brannighan's cow, as it 
was alleged by the latter to have done. Brannighan, in evidence, 
swore that his calf was eight or nine months old ; on the other 
hand, an employee of Williams, named Culver, swore that the 
calf was the offspring of one of WiUiams' cows, and was twelve 
months old at least. The opinion of the Inspector of Brands, 
also, was that it was at least twelve months' old. Brannighan 
could not say whether the calf was not branded on the 29th June, 



CRIMINAL REPORTS, 1860—1907. 167 

1884, though it had the appearance of having been branded about „ Williams v. 

imi 1 ,-1 1 Baird AND Others 
beptember. The bench, consisting of the above-named justices, 

convicted Williams of illegally branding the calf with his registered 

brand, not being its lawful owner, and fined him £10, in default a 

month's imprisonment. 

The rule was granted on the grounds — 

1. That there was no evidence that the offence was com- 

mitted within six months before information laid. 

2. That there was no evidence that the branding was done or 

permitted wilfully. 

3. That the conviction was against the evidence. Court 

dismissed first ground ; Brands Act Amendment Act of 
1884 apphes in this case. 

Eeal moved the rule absolute. He stated the facts. The calf 
was seen only once by prosecutor before it was branded ; and a 
cow of defendant's had mothered it throughout. He submitted 
that the question was on the second ground : Is a bona fide claim 
of right an answer to a prosecution under the 27th section of the 
Brands Act ? 

Harding J. : As in a larceny case. 

Butledge A.G. (Lilley with him), shewed cause for the magis- 
trates, and submitted that by the evidence of defendant, in 
December, 1883, the calf was being mothered by his cow and was 
two weeks old ; and that in August, 1884, she produced another 
calf. That was improbable ; it was a question of the usual 
period of gestation. He cited Curran v. Dowzer, Q.L.J. , vol. II., 
p. 45, as to intention. While there must be reasonable proof on 
the part of the prosecution that there was a wilful branding, on 
the other hand there must be such ground for a claim of bona fides 
as would convince reasonable men that the calf was the property 
of the brander. 

Lilley C.J. : On the question of bona fides, the magistrates 
are judges of the facts, like a jury. 

Butledge A.O. : The magistrates clearly disbelieved defendant's 
evidence. 

Lilley followed, and submitted that the onus of proof lay on the 
defendant ; and that the fact was determined by the justices. 

Chvhb Q.C: [Drake with him) showed cause for the prosecutor, 
Brannighan, and submitted that the fact, as to a colour of title, 
was determined by the justices, who were the proper tribunal. 
The Court would not review their decision on the fact. 



168 QUEENSLAND JUSTICE OP THE PEACE. 

Williams v. Lilley C.J. : They must determine not only that it was not 

his property, and whether his claim was a good one, but that it 

was made in good faith. His claim was decided to be wrong, 
but did he make it in good faith ? Did they determine that ? 

Beal, in reply, submitted that the justices decided that wilfully 
branding was intentionally branding. Defendant did not get the 
benefit of a consideration of the real state of the law — that a bona 
fide claim of right was a good defence. 

Lilley C.J. LiLLEy C.J. : If they did not admit that defence, it would be 

a mis-trial. If the only evidence that they did not admit is, as a 
proposition of law, that they decided against him, it is not suffi- 
cient ground. The rule is discharged with costs. As to the law, 
we are quite clear that a party charged with an offence under this 
section (No. 27) of the Brands Act can set up the defence that he 
branded an animal and assumed the right of property in that way 
under the bona fide behef that it was his property; in other words, 
that a bona fide claim of right of property is a defence against a 
charge, much in the same way that it is in larceny. When a man 
takes property, honestly beheving it to be his own, and it turns 
out that it is not his, he is not answerable to the law for a criminal 
prosecution. 

SoHcitor for applicant : Chambers, Brisbane ; agent for Barnett, 
Cooktown. 

Solicitor for prosecutor — Thynne, Brisbane. 
Solicitor for Justices : The Crown Solicitor. 



[Full Couet.] 

REGINA V. JUDGE. 

[2 Q.I,.J. 61.] 

1885. Information — Description of person murdered. 

1' The information eiarged the prisoner with murder, and the child who was 

Lilley C.J. alleged to have been murdered was described in the information as a certain male 

Harding J. ^j^jj^ ^.j^^^^^ lately before born of the body of her the prisoner, and that the name of 

the murdered child teas to Her Majesty's Attomey-Oenerai unknown. There was 

evidence that the child was bom three months after the prisoner's marriage, and 
Ihat the prisoner's husband was not the father of the child. 
Hdd, that the child was sufficiently described in the information. 

This was a special case stated by Mr. Justice Harding : — 



CRIMINAL REPORTS, 1860—1907. 169 

1. The prisoner was tried before me at the Criminal Sittings Begina v. Jddoe. 
of this Honorable Court, holden at Rockhampton, on the 21st 

day of April, 1885, on an information presented on the same day, 
whereby she was charged as follows : — " That Annie Judge on 
the fifteenth day of December, in the year of our Lord one thousand 
«ight hundred and eighty-four, at Sandy Creek, in the Colony of 
Queensland, feloniously, wilfully, and of her mahce aforethought 
did kill and murder a certain male child then lately before born of 
the body of her the said Annie Judge, whose name is to Her 
Majesty's Attorney-General unknown." 

2. So far as it is material for the consideration of the point 
leserved in this case the evidence was as follows : — 

Jane Brown deposed amongst other things as follows : — " On 

the 15th of December last I saw the prisoner She 

appeared to be greatly in the family way Mrs. 

Whattshell fetched the prisoner's husband home 

The prisoner's husband fetched a nurse from Clermont. Mrs. 
Parsons was her name." 

Mary Ann Parsons deposed amongst other things as follows : — 
■" On Monday, 15th December last, her husband, Mr. Judge, 
came for me. . . . She kept saying there was no baby. 
She said ' how do you think it could be a baby and I only three 
months married.' Soon after this her husband came home. He 
spoke to her and asked her to tell what was the matter. I said 
to her husband, ' don't be rash ; try if you can't coax her to tell 
ail about it.' She said to her husband, ' I won't teU you, I'U tell 
Mrs. Parsons.' I went in and said, ' now come tell me what 
you have done with it.' She said, ' rise up the corner of the 
mattress behind me and you will find it.' I raised up the corner 
of the mattress and I saw the child lying on its face. It was a 
male child. I picked it up. . . . When I took the child 
out I asked, ' who is the father of it ? ' She said, ' I've been but 
three months married.' She told me who the father was. She 
did not name her husband. . . . The prisoner gave no name 
to the child. I never heard that it had any name of its own." 

William Fitzmorris deposed amongst other things : — " I saw 
the prisoner's husband there." 

3. At the conclusion of the case for the Crown, I called the 
attention of the Attorney-General to the state of the evidence, 
and he did not ask leave to amend. 

4. In my summing up I told the jury that it was necessary 
for the Crown to prove that the name of the male child was to Her 



170 QUIENSLAND JUSTICE OF THE PEACE. 

Beoina v. Jddge. Majesty's Attorney-General unknown, and that if they did not 
find it was they must find a verdict of not guilty. 

5. I reserved the point as to the sufficiency of the evidence to 
support a conviction for the consideration of this Honorable 
Court. 

6. The jury found a verdict of guilty, and I passed a sentence 
of death. 

(Signed) Geobge R. Haeding, J. 

5th May, 1885. 

The question for the Court was whether the description of the 
child alleged in the information to have been murdered, as of 
name " to Her Majesty's Attorney-General unknown " was a 
sufficient description. 

The Attorney-General {A. Rutledge), and Real with him, for the 
prosecution. 

Mansfield for the prisoner. 

The Attorney-General, in support of the conviction, submitted 
that the evidence showed that the child had been lately born of the 
body of Annie Judge, but had never been seen alive, and had 
not acquired a name from Judge, or from anybody else, or the 
reputation of such. He cited Reg. v. Bliss, 2 Moo. CO., 93 ; 
and Reg. v. Willis, 1 Den. C.C., 80. In the latter the prisoner 
was not a married woman ; here she was. 

Lilley G.J. : There it was a bastard of no name. Here being 
bom in wedlock, the question is does it acquire the name of the 
husband ? Is a name more than a matter of reputation 1 
Strictly speaking, if the child had been born in the house, and 
handed about for a day, it would probably have the family name 
at least, by reputation. It had not been baptised. Was there 
proof of its legitimacy, properly received ? Ordinarily a parent's 
evidence cannot be heard to bastardize his own offspring on grounds 
of public morality and decency. Non-access cannot be sworn to. 
Still there is no objection to a woman swearing that the child 
is not that of her husband. 

The Attorney-General : The declaration of Judge to the witness, 
Parsons, is conclusive that the child was a bastard. There can 
be no doubt the child had not obtained a name by reputation, as 
it was killed almost upon birth. A name itself is acquired by 
reputation — Luscombe v. Yates, 5 B. <& Aid., 544. The fact that 
the child is accurately described so as to point to the identity of 
it, as the victim of the crime beyond a doubt or question, fulfils 



CEIMINAL EEPOETS, 1860—1907. 171 

the requirements of the law ; and the child, having been strangled Eeoina v. Judoe. 
almost at the instant of birth, had not acquired any name. 

Real followed : The description was sufficient apart from 
description of name unknown. Reg. v. Waters, 1 Den. G.C., 356. 
All names are acquired by reputation. Bastards have a right 
to neither parent's name. Ste'ph. Comm., Ed., '74, Vol. II., 299w. 
This case is within the one in Denison ; and the child here was a 
bastard. Here, first, the woman denied having a child ; second, 
concealed the fact from her husband. These two circumstances 
are stated as evidence of illegitimacy, in Morris v. Davies. There 
was evidence for the jury of illegitimacy ; and nobody had 
imputed the name of Judge. The description was therefore 
sufficient to identify the subject of the crime. 

Lilley C.J. : She imputed neither name, nor parentage to 
Judge. 

Mansfield : There is a fatal variance in the information if the 
child was legitimate. The first part would then be sufficient — 
" A certain male child then lately before born of the body of her 
the said Annie Judge." Reg. v. Biss {rep. also 8 Gar. and P., 
773) ; Reg. v. Campbell, 1 Car. and K., 82, also cited. Reason- 
able diligence must be used by Crown. Here they did not use 
it. Reg. v. Willis, and Reg. v. Hogg, 2 Moo. and Rob., 380 ; 
and R. v. Waters. The child was illegitimate ; they do not apply 
then unless the child here is proved illegitimate. Neither husband 
nor wife can be allowed here to prove non-access. In A. v. A., 
25 L.J. Gh., 136, the M.R. allowed the wife to be asked how long 
she had known her husband before marriage ; on her answering 
more than a year, he allowed no further question as to access. The 
presumption here is in favour of legitimacy. There is no evidence 
of concealment from husband more than from anybody else. 
There is no evidence of illegitimacy to rebut the contrary pre- 
sumpton. Immediately on birth, being her child, it should take 
the name of Judge. Steph. Comm., Ed. '74, Vol. II., 299 n. 

Lilley G.J. referred to Hargrave v. Hargrave, 2 Car. and K., 701. 

Lilley C.J. gave judgment as follows : — In this case the IJiHey C.J. 
information charged the prisoner with murder, and the child 
who was alleged to have been murdered was described in the 
information as "a certain male child then lately before born 
of the body of her the said Annie Judge." If the information 
had stopped there, she being a married woman, I think the law 
must be taken to be that the child had acquired from the moment 



172 QUEENSLAND JUSTICE OF THE PEACE. 

Eeqina v. Judge of j^g birth, if a legitimate child, the reputation of her name. 
LilieyC.J. That name would be Judge. I think it would be a sound practice, 
which ought to be followed in the Crown Office, to describe the 
child by the name of the married woman, if not baptised. In 
other words, I think it is the law that a child born legitimately of 
married people has the name of the presumed father. Under 
these circumstances, if a child is born of a woman after her 
marriage, it is presumed to be legitimate ; but that is a presump- 
tion which may be rebutted ; and, I suppose, it was by reason of 
the fact that in this case it was rebuttable that the Attorney- 
General added these words that the name of the murdered child 
" Is, to Her Majesty's Attorney-General, unknown." If our idea 
of the law is correct that the child born to married persons bears 
by reputation from the instant of its birth the name of the family 
into which it is born, it would not be right on the part of the 
Attorney-General to describe it as a child whose name to him 
is unknown. I presume these words were put in because the 
Attorney-General knew that the legitimacy of the child was 
in question, or Hkely to be called in question. As the reputation 
of the name of Judge, which would attach to the child under 
ordinary circumstances as the child of a married woman, is 
rebuttable, it seems to me that there was very cogent evidence 
to go to the jury to show that the child was illegitimate, and 
therefore was not entitled to the name of Judge, and by reputation 
had not acquired the name, or right to go by that name. The 
mother did in fact conceal the child, and then denied that the 
child had been born, and wished to conceal the fact altogether 
from her husband, and in the next place she stated to the married 
woman in whom she was at last induced to place confidence, that 
the child was the child of a person whose name was not that of the 
husband. Assuming that she had her senses about her — and 
there is no evidence that she had not — it is fair to believe that it 
was an illegitimate child, whose name was to the Attorney- 
General unknown ; because in law it is clear that an illegitimate 
child has no right to the name of either its father or mother, unless 
by reputation. That may arise by imputation very quickly, a 
few moments after birth. If for ever so short a period of time 
a child is called by the name of one or other of the parents, it is 
sufficient. This child was murdered a few moments after birth ; 
and there is no evidence that she, or anybody, gave any name 
to it. It was murdered almost immediately after it was born. 
I think the information is perfectly correct. It was a child whose 



CRIMINAL REPOETS, 1860-1907. 



173 



name was to Her Majesty's Attorney- General unknown. The Begixa v. Jodqe. 
jury found it was a child whose name was to him unknown, and Lilley C.J, 
I think the conviction must be affirmed. 



Haeding J. : The judgment of The Chief Justice, as far as it 
touches upon the case, I fully concur in ; the trial took place 
before me at Rockhampton. The prisoner was not defended ; 
there was no help for it, as no counsel, or soUcitors, or anybody 
who could possibly defend her was present ; a Judge under these 
circumstances, has, if possible, a more careful duty to perform 
than if counsel were preserit. I watched the case with a view 
of saving and bringing out all points that I could see, which should 
be brought out for the prisoner, and amongst others arose the 
question as to the admissibility of the piece of evidence which 
has been pointed to, and to the possibility of a variance having 
arisen. There were two courses to take. To reject the evidence, 
which I should have done and have always done where the 
incUnation of my mind has been that it was not receivable. The 
late Mr. Justice Pring, when at the bar, on one occasion where a 
prisoner was on his trial for murder, strongly argued before me 
that certain evidence should be received ; he argued, receive 
the evidence and reserve a point if there is any doubt about its 
admissibiUty. I held on the other hand, viz. : — I was satisfied, 
that, if not receivable, it did not lay upon me to allow inadmissible 
evidence to go to the jury, and-allow a prisoner to be convicted 
on insufficient evidence and go through the torture of delay 
and be afterwards discharged, on evidence which I considered 
inadmissible. I follow the course, I beUeve, taken by all Judges 
at the trial of a prisoner, to reject all evidence as to the inadmissi- 
biUty of which I have no doubt myself. If my opinion is in 
favour of the admissibility of the evidence, yet if, from my 
knowledge of the law and the authorities, I see that behind that 
opinion there is room for an arguable case, I consider it my 
duty to reserve a case, however strong m.y opinion may be. I 
took that course here. The other course was to direct the jury 
that on the birth of the child it acquired the name of its parents 
by law, and that that being so, the Attorney-General must have 
known its name, and to have directed an acquittal. Being then 
as now of the opinion that the information was sufficient, but yet 
having then in my own mind's eye the series of authorities, perhaps 
not in the accurate way in which they have been put at the bar to- 
day, and knowing that the question was arguable, I thought 
it well to reserve the point and having done so and the matter 



Harding J. 



174 



QUEENSLAND JUSTICE OF THE PEACE. 



Beoinau. Oddob. having been argued at length at the bar, I think the conviction 
Harding J. must be upheld, and for the reasons stated by His Honor The 
Chief Justice. 

Mein J. Mein J. : I am of the same opinion. The Chief Justice has 

so fully entered into the circumstances of the case and the law 
that there is no need to further enter upon the question. I consider 
that the law assumes that a child born in wedlock is the child of the 
husband, and that it takes by reputation the name of the husband, 
until proved to be illegitimate. In this case the question reaUy 
turns upon the fact whether there Was sufficient evidence to go 
to the jury to prove the child illegitimate. I think there was. 
The concealment of birth by the mother from her husband and the 
denial of having given birth to the child come within the case of 
Hardgrave v. Hardgrave. I think, the mother having done that, 
there was evidence to go to the jury as to the illegitimacy ; and 
that as the child was killed immediately after birth it could not, 
being illegitimate, by any possibility have acquired a name by 
reputation. The Attorney-General described the child correctly 
in the indictment. 

Conviction affirmed. 

Solicitor for Crown : Crown Solicitor. 



1885. 

21st July. 
Lilley C.J. 



[Ipswich Circtjit Cotjet.] 
REGINA V. ALEX. DIXON. 

[2 Q.L.J. 81. Note. — 29 Vic, No. 6, s. 65 is repealed. See now definition of 
dwelling-house in s. 1 of Code. See R. v. Hamilton, 3 Q.L.J. 78, post.] 

29 Vict., No. 6, s. 65 — Dwelling-house — Canvas. 

Any enclosed structure wherein a man dwells for the time being is a dwelling- 
house within the meaning of the Act. 

In this case, the prisoner was charged with the larceny of a 
watch and other articles, from the dwelHng house of the prosecutor. 
The prosecutor was then and had been for about six months prior 
to the date of the alleged offence, Uving in a tent which had four 
sides, through one of which ingress and egress were effected by 
lifting a flap which could be closed by tying down or otherwise 
securing it. The tent was on prosecutor's own land. 



CRIMINAL REPORTS, 1860-1907. 

Power, Acting Crown Prosecutor, in opening, referred to the 
point whether a tent was a dwelling house within the meaning of 
the Act— 29 Vict., No. 6. 

Lilley C.J., in summing-up, said : " a dwelUng house must be, 
within the statute, the abode" for the time being of the owner of 
the property stolen. There is no doubt that this is of canvas, 
but it is not essential to the structure of the house that it should 
be of any one material. It is material that it should be closed, 
and that it be the place where a man dwells for the time being. 
It may be of stone, brick, wood or mud ; and in some countries 
even of paper. Very elegant houses in Japan, even whole cities, 
are built of paper — papier mache. It appears to me that if a 
man on his own land puts up a structure of canvas, and goes there 
to eat, sleep, and dwell, it is essentially, under the statute, his 
dwelling house." 



175 

Beoina v. Alex. 
. DrxoN. 



Lilley C.J. 



[Pull Court.] 

REGINA V. PIEREMONT. 

[2 Q.L.J. 93.— Note.— Sec. 206 of 38 Vic, No. 5 is repealed. See now see. 521 (d) 
of the Criminal Code to lilce eSeet. Case referred to in R. v. Duncan, 4 Q.L.J. 
219, post, and R. v. Hamilton 9 Q.L.J. 251, post.] 

Insolvency Act of 1874 (38 Vict., No. 5, s. 206) — Disposal of goods 
other than in the ordinary way of trade. 

A person disposes of goods other than in the ordinary way of his trade within 
the meaning of s. 206 of the Insolvency Act, who puts them away under such 
circumstances that he exhibits an intent, and that the jury are satisfied that he 
puts them away beyond the reach of his creditors, under the statute. 

Held also, that it is not necessary that a man should absolutely part with the 
property, if he puts them beyond his power of control, or that of his trustee, 
assuming that the disposition was not in the ordinary way of his trade. 

This was a special case stated by Mr. Justice Mein. 

The prisoner was adjudged insolvent on the 1st May, 1885, on his own petition, 
which was presented at the District Registry in Insolvency at Townsville, on the 
17th April, 1885, and was tried before me at the last Criminal Sittings of this 
Court, held in Brisbane, on a charge of misdemeanour under s. 206 (15) of The 
Insolvency Act of 1874, for having at Townsville on the 16th March, 1885, within 
four months next before the presentation of his petition for adjudication, unlawfully 
disposed of, otherwise than in the ordinary way of his trade, certain property of 
his, consisting of 91 cases of tea and 25 boxes of tea, which he had obtained on 
credit and had not paid for. 



1885. 
December. 



176 QUEENSLAND JUSTICE OF THE PEACE. 

Keoina v. The prisoner started in business as a produce merchant at Townsville, in the 

PiKBEMONT. month of August, 1884, with a capital, according to his own statement, of £125. 

On an examination before this Court in its Insolvency Jurisdiction which was^ 
put in evidence the prisoner admitted that he did not pay this capital into any 
bank, and stated that he used it in purchasing goods for cash in Sydney. The 
prisoner continued to carry on the business t)f a produce merchant at Townsville, 
selling wholesale and retail, up to the time of the presentation of the petition. 
In the month of December, 1884, he received from the firm of Ponder, Evans & 
Co., of Sydney, tea merchants, £235 123. 5d. worth of tea, made up of 100 boxes, 
8 quarter-chests, 4 three-quarter chests and 79 half-chests, which he had purchased 
from them on credit, the purchase money being represented by a promissory 
* note of the prisoner's in favor of that firm, which matured on the 17th of April, 

1885, and has never been paid. The tea so received by the prisoner was bonded 
by him in his own name in Townsville, and the whole of it, with the exception 
of about ten half chests, still remained in bond in the prisoner's name, and unsold 
at the time of his insolvency. 

In the month of November, 1884, the prisoner was indebted to the Queensland 
Mercantile and Agency Co., Ltd., of Brisbane, of which Mi. N. J. Howes is a 
Director, in the sum of £250, on an open account. He incurred a further liability 
to that company in December, also on an open account, to the extent of about 
£80. On the 21st January, 1885, a promissory note of £266 Os. 4d.. made by him in 
favor of that company was dishonored ; and at the beginning of March, 1885, 
the total liability of the prisoner to the Q. M. and A. Co., Ltd., including his liability 
in respect of the dishonored promissory note amounted to about £680. 

On the 12th January, 1885, the prisoner wrote to Mr. Howes informing him that 
money was " coming in very badly since the holidays," and requesting him to 
renew £150 of the amount of the promissory note which would fall due to his 
company on the 21st of that month. This request was not complied with, and on 
the 21st January, the day on which the promissory note became due, the prisoner 
sent an urgent telegram to Mr. Howes in these terms : — " Bill due to day short of 
£150 wire credit." This further request was also not complied with, and the 
promissory note, as already mentioned, was dishonored, and it has never since 
been paid. 

In the early part of February, 1885, the prisoner visited Sydney. Whilst he 
was there he opened an account at a Bank in the fictitious name of Henry Harris, 
and deposited to the credit of the account £607 7s. 5d. Upon his examination 
before this Court, he stated that he drew the whole of this money out of the Bank ; 
that he kept no books with reference to it, that it was a trust account, and that 
he gave the name of Harris because he " did not want it to appear that he had an 
account at Sydney." He also admitted that information with regard to this 
account had been obtained by his trustee through a bank slip which the trustee 
had found amongst his papers, and which he (the prisoner) did not know was in 
Townsville. 

During the same visit to Sydney the prisoner between the 7th and 12th of 
February, bought from the firm of Ponder, Evans and Co., tea to the value of 
£446 7s. Id. The tea so purchased was done up in packets of lib. each, in tins 
of 51b. each, and in boxes of 101b. each. The lib. packets amounted in value 



CRIMINAL REPORTS, 1860-1907. 177 

to £380 13s. 4cl., and were marked by Ponder, Evans and Co. with a special brand, Beoina v.' 

r T "ff H W" IW O W T 

designed by the prisoner, which included the name of the prisoner and his address 

as a produce merchant at Towusville. The whole of this tea was purchased on 
credit, and the purchase money was represented by a promissory note of the 
prisoners in favor of Ponder, Evans and Co. for £446 7s. Id. dated 5th March, 
1885, and payable four months after date. The promissory note has not, nor has 
any of the purchase money of the tea, ever been paid. 

The prisoner on his examination before the Court alleged that he was induced 
to purchase the second lot of tea upon the representations of a Mr. Howlett, 
who is at present the trustee of his estate, and was at that time acting as the 
agent in Queensland of Ponder, Evans and Co., that another firm in Townsville 
was then selling similar tea. Mr. Howlett, however, positively denied that he 
had ever made any such representations to the prisoner, and asserted that he 
neither induced the prisoner to purchase the tea nor brought it under his notice 
in any way ; that the prisoner had purchased the tea from Ponder, Evans and Co, 
on his own motion, and after a personal examination and approval of the tea. 

The prisoner, before the end of February, returned from Sydney to Townsville. 
Whilst he was passing through Brisbane, he waited upon and had a conversation 
with Mr. Howes. During this conversation, reference was made to the state of 
the prisoner's account with the Q. M. and A. Co., Ltd., and Mr. Howes told the 
prisoner that it was as large as his company would like it to be, and that they 
would like it to be reduced. No reference was made to tea or any other goods, 
nor was anything said about the prisoner sending to the Q. M. and A. Co., Ltd., 
any consignments. 

The tea purchased in February was shipped by Ponder, Evans and Co. to the 
prisoner in 91 cases containing the lib. packets and the 51b. tins, and in 25 boxes 
containing lOlbs. each, on or about the 4th March, 1885, and was conveyed from 
Sydney to Brisbane by the S.S. " Leura," was transhipped from the " Leura " to 
the S.S. " Keilawarra " in Brisbane, and was conveyed by the " Keilawarra " to 
Townsville. There was no direct evidence as to the date on which the " Keila- 
warra " reached Townsville, but the insolvent stated in his examination before 
the Court that in the ordinary course, the " Keilawarra " would have reached 
Townsville about the 11th March. 

On or about the 13th March, 1885, the Q. M. and A. Co., Ltd., received from 
the prisoner a letter. This letter was not produced at the trial, and Mr. Howes 
stated that neither he nor the clerks in his company's employment could find 
it after a diligent search. Mr. Howes stated that the letter consisted of only a 
few lines, and that in it the prisoner asked his company if they would make him 
" advances over tea and other goods." In reply to this letter Mr. Howes, in the 
name of his company, sent the following telegram, dated 13th March, 1885. 

" Ship tea on consignment will place five hiindred your credit against over- 
draft account reply if sending.'' 

The prisoner replied by telegram, dated 14th March, 1885, in the following 
terms : — 

" Goods will leave here Tuesday, sell to best advantage." 

On the 16th March, 1885, the prisoner, without having examined or landed 
M 



178 QUEENSLAND JUSTICE OF THE PEACE, 

Bbgina I). any of the tea that had arrived at Townsville in the " Keilawarra " consigned 66 

' cases and 25 boxes of it to the Q.M. and A. Co., Ltd., and obtained from the agents 

of that steamer at Townsville a shipping receipt or bill of lading which acknow- 
ledged that the prisoner had shipped by the " Keilawarra " to Brisbane, 66 cases 
tea and 25 boxes tea, consigned to the Q.M. and A. Co., Ltd., the freight thereof 
from Townsville, amounting to £9 8s. lOd., being charged " on." On the same 
day the prisoner sent the shipping receipt to Mr. Howes with a memorandum of 
which the following is a copy : — 

" Enclosed please find S/R. for 91 packages tea which please sell on my 

account. The boxes are invoiced to me at 9d. per lb. and the pink packets 

at Is. 4d., other packets at Is. 2d. in bond. More goods will follow next 

week." 

The tea so sent to the Q. M. and A. Co., Ltd., reached Brisbane in due oouise 

and was placed by that company in bond in their name. They subsequently sold 

a small parcel of it and the remainder continued in bond in their name, until the 

month of June, 1885, when it was transferred to the trustee of the prisoner's 

estate. The prisoner had not previously consigned any goods to the Q. M. and A. 

Co., Ltd. 

On the same 16th of March the prisoner caused the balance of the tea that 
reached Townsville in the " Keilawarra," consisting of 25 cases, to be taken 
from the " Keilawarra " to the S.S. " Ocean," by a lighter, and the cases so 
placed on board of the " Ocean " were conveyed by that steamer to Sydney, 
consigned to a firm there named Symonds, Howes and Co., of whom Mr. Symonds 
was the prisoner's brother-in-law. No bill of lading of the tea so consigned to 
Symonds, Howes and Co., was produced at the trial. It was, however, proved 
that Symonds, Howes and Co., had received the tea ; but there was no evidence . 
to show how that firm had disposed of it. 

The prisoner on his examination before the Court stated that the tea so sent 
by him to Symonds, Howes and Co., consisted of 15 cases, each containing 12 tins 
of 51b.., and 10 cases each containing 80 packets, and that he sent it " for sale 
by them and returns." The prisoner also admitted^that, when he sent the tea 
to Symonds, Howes and Co., that firm held an unmatured P/N of his for 
£135 lOs. 6d. which was afterwards dishonored. Mr. Howlet deposed that he 
had made application to Symonds, Howes and Co., for the return of the tea but 
they had refused to give it up and that he was suing them in Sydney for its value. 
On his examination before the Court, the prisoner stated that he took with him 
from Sydney in February samples of the tea that he had purchased from Ponder, 
Evans and Co., and that he tried from that time up to the time he sent the tea 
to Sydney to sell it, but that it was " rubbish badly packed and imsaleable," 
and that he " thought it would realize more in Sydney or Brisbane than in Towns- 
ville, and that was why he sent it to Sydney." He at the same time admitted 
that he had never sent any other consignment of goods to Sydney. 

Mr. Howlett deposed that the prisoner told him, about the time when he con- 
signed the tea to the Q. M. and A. Co., Ltd., and to Symonds, Howes and Co., 
that " trade in Townsville was never better than it was at that time." 
Mr. Howlett also stated that, about a week or ten days before the 16th March, 



CEIMINAL REPORTS, 1860-1907. 179 

he had sold teas in Townsville, of the same description as those that the prisoner Begina u. 

had purchased from Ponder, Evans and Co., and at the same prices as had been ieke^ 

charged to the prisoner. 

The prisoner did not at any time inform Ponder, Evans and Co. of either of the 
consignments by him to the Q.M. and A. Co., Ltd., and Symonds, Howes and Co. 

At the conclusion of the evidence for the Crown, Mr. Lilley, counsel for the 
prisoner, submitted that there was no case to go to the jury, and asked me to direct 
the discharge of the prisoner. I refused to comply with his request, and the 
prisoner was found " Guilty " by the jury. 

After the verdict of the jury had been returned and recorded, Mr. Lilley 
requested me to reserve the following questions of law for the consideration of 
this Court : — 

1. Was there any evidence as to disposal of the goods, or any of them, within 

the meaning of the section ? 

2. Was there any evidence that the defendant disposed of them otherwise 

than in the ordinary way of trade ? 

The Attorney-General, who prosecuted on behalf of the Crown, thereupon 
subniitted that Mr. Lilley was too late in preferring his request, as the statute 
required that the application of prisoner's counsel should be made " diiring the 
trial," and argued that the trial had been concluded by the return of the jury's 
verdict. I overruled the Attorney-General's objection and state this case in 
consequence of the application by the prisoner's counsel. If such application 
had not been made, I should not, in the exercise of my own discretion, have reserved 
any question for the consideration of this Court, as I was, at the time, satisfied 
that there was sufficient evidence to support the conviction. 

I did not pass judgment on the conviction, but postponed such judgment until 
the questions reserved by me had been decided by this Court, and committed the 
prisoner to prison, and he now is in prison. 

The question for the opinion of the court substantially is : — 

Was there any evidence to support the conviction ? 

Signed : — 

Chakles Sttjam Mein, J. 
Supreme Court, Brisbane, 

28th November, 1885. 

Real and Kinnaird Rose appeared for the Crown. 

Lilley opposed the conviction and opened his case. 

Lilley C.J., referring to the Attorney-General's objection to 
Mr. Lilley' s request at the trial to reserve a case, said : I am of 
opinion that a motion in arrest of judgment may be moved even 
after sentence, so long as the proceedings are still going on, if the 
prisoner has not been removed. During the trial it certainly 
can be raised. The proper time is after the verdict is brought in. 
He referred to Reg. v. Martin, 1 Den. G.C., 398, and 18 L.J., M.G., 
137. In the English Act the word is " may ; " here it is " shall." 
Apart from this there is the common law right of the Judge to 



180 QUEENSLAND JUSTICE OP THE PEACE. 

Regina r. reserve a point for his brother Judges. We hold that the 

PlEREMONT. /-I n 1 c -T 

Attorney-Generals objection was lutile. 

Lilley submitted that under the subsection, " disposal " means 
that a man m.ust divest himself of some property in the goods ; 
must lose it to himself and his creditors. If he joins them in 
security to another, it is pawn ; if he consigns them the money 
is his or his creditors. Had the prisoner's goods been sold by the 
Q.M. & A. Co. at good prices, and the money held for his trustee, 
what objection could there be to that ? Then there was no 
evidence as to the ordinary way of trade by a commission agent 
and produce merchant at Townsville. There may be abundant 
cases of fraud, and abundant provisions against it, but if he does 
not come within the particular section under which he is indicted, 
there cannot be a conviction. He did not dispose of the goods: ;: 
if the Q. M. & A. Co. might hold the goods consigned them by 
him, or the money proceeds from their sale, that was pawning. 
Disposing is selling. 

Harding J. : " Dispose " is the highest word in the subsection ; 
"big enough to include pawn " and " pledge." 

Lilley : On the cases decided, dispose does not include pawning 
and pledging. Beg. v. Bolus, 11 Cox C.C. 610 ; 23 L.T., N.S., 
339 ; Ex parte Brett ; In re Hodgson, 1 Ch.D., 151. Reg. v. 
Thomas, 11 Cox C.C. 535. 

Harding J. : Could he have got his goods back again ? 

Lilley: Most decidedly; supposing Symonds, Howes. & Co. 
had gone insolvent, he could have stopped them in transitu. 

Lilley C.J. : But they were never taken on shore at Townsville. 
They were shipped from Sydney and were then sent back to another 
merchant in the same street in Sydney. 

Lilley : He could have stopped them in transitu. Until they 
came into the hands of Symonds, Howes & Co., he had not dis- 
posed of them ; and directly they fell into their hands in Sydney,, 
the disposal if complete, was complete outside the jurisdiction 
of the Court. 

Lilley C.J. : I do not think it matters under this statute where 
the goods are that are disposed of ; if it was property he was- 
trading with, or could trade with here. 

Lilley cited Beg. v. Bandinty, 4 Fos. and Fin., 165. 

Lilley C.J. : That was a conspiracy in Paris ; here it is a case 
of bringing goods within the jurisdiction. 



CRIMINAL REPORTS, 1860-1907. 181 

lAlley : But he disposed of them in Sydney. He referred to Eeqina o. 
1st subsection of the section (206). 

lAlley G.J. : I think the word " dispose " is used here to avoid 
the technical consideration of pawn or pledge. 

Lilley cited Reg. v. Manser. Prisoner never disposed of the 
goods. He consigned to the Q. M. & A. Co., to sell at the best 
advantage, and to Symonds, Howes and Co., for sale and return. 
They could not hold as security against his account current 
with them. He cited Spalding v. Ruding, 6 Beav., 376. There 
must be some divesting of interest in the insolvent. He could 
at any time have brought action against Q. M. & A. Co. to recover 
the goods ; and he could have had them back at any time, upon 
paying charges, if any, upon them. They could not hold them to 
satisfy the general account. Verivs v. Jewell, 4 Comp. 31 ; 
Saddler and Others v. Whitmore, 5 Jur., O.S., 315 ; Gibson v. 
Bray, 1 Mo., 519. Then, as to " the ordinary way of trade," 
there is no evidence of what is the ordinary way of trade of a 
commission agent and produce merchant at Townsville. 

Mein J. : There was some evidence. 

Lilley G.J. : The Court will generally refuse to send back a 
case reserved for amendment. Roscoe, p. 231, referred to. 

Lilley : There is no evidence on the point. Prisoner on the 
other hand would be doing probably the best thing in sending 
his goods from the smaller to the larger market. The verdict 
should be set aside. 

Beal, in reply : The section applies to disposal of them in any 
possible way. Part of these goods was sold. If sending alone 
was not disposal, part were sent to auction and sold. In Ex parte 
Brett, they were consigning merchants, and the question was 
whether they sent goods to AustraUa in the ordinary course of 
trade. In Reg. v. Thomas, Lush J., says, " You cannot say 
that disposing of stock in trade by a bill of sale, is disposing of 
it in the ordinary way of trade ; that must be by selUng over the 
counter," p. 538. He sent the goods after he was specially told it 
would be placed against his overdraft with the Q. M. & A. Co. 
It cannot be the ordinary course of honest trade to ship goods to 
Brisbane from Sydney and then on further to Townsville, for the 
purpose of bringing them back again. It cannot be "in the 
ordinary way of trade " to dispose of goods by way of fraudulent 
preference. There is sufficient on the case to show that this 
could not be " in the ordinary way of trade." He received 



182 QUEENSLAND JUSTICE OF THE PEACE. 

Regina v. ^jj^g goods ; had not paid for them ; sent some to Sydney where 

' he had purchased them, and not to the person from whom he had 

purchased them, for sale and return. 

Harding J. : You have enough to show what was done ; but 
not enough to show what should be done. 

Lilley G.J. : The learned Judge will amend the case. You, 
Mr. Real, may refer to the evidence ; and the Judge will check 
you and put what you refer to into the case. 

Real did so. He contended : Prisoner had hot paid for these 
goods or any of them, and he had disposed of them in a way 
which would amount to fraudulent preference ; that is, not the 
ordinary course of trade. 

Hearing adjourned ; the Judge to amend case. 

The following amendment to the case was added : — 

I DESIRE to amend the Case already submitted by me and filed on the 28th 
November last, by the addition of the following Statements : — 

At the trial of the prisoner, Mr. Howes gave the following, amongst other evi- 
dence that I do not think it necessary to specially refer to. 
On examination in chief by the Attorney General : — 

" When a person in business sends goods to another for sale the seller places 
" the proceeds, as a matter of course, to the credit of the person who 
" sent the goods ; that is what is usually done in business unless there 
" is a special arrangement to the contrary." 
On cross-examination by Mr. Lilley : — 

" I have had plenty other goods sent to me from the North in this way. 
" It is quite an ordinary thing for a firm up North who have unsaleable 
" goods to send them down to Brisbane for sale on consignment. We 
" received the tea on consignment to sell to the best advantage. The 
" proceeds of the sale were not sufficient to pay the charges, and we 
" handed over the tea unsold to the Trustee. We offered the tea to 
" travellers, and it was not a saleable line : most of it was packet teas." 
On re-examination by the Attorney General : — 

" I have not had plenty of goods sent to me by people who have gone insolvent 

" B. month after they sent them. It is quite the ordinary thing for 

" persons to send down goods to Brisbane for sale on consignment 

■' within a month of becoming insolvent, if they think in their judgment 

" it is the best thing that can be done with the goods. I don't say 

"it is quite the ordinary thing for persons to send a large parcel of 

" goods to one of their creditors, and go insolvent a month afterwards." 

In my charge to the jury, I told them, with respect to the teas consigned by the 

prisoner to Symonds, Howes & Co., and to the Queensland Mercantile and 

Agency Co., Ltd., respectively that if they were satisfied that the teas so 

consigned were, in either case, sent to the consignees in order that they might 



CRIMINAL REPORTS, 1860-1907. 183 

appropriate the goods, or the proceeds of their sale In liquidation of any subsisting Begina v. 

liability of the prisoner's to them, either with a view to give such consignees a ^ iebe o . 

preference over the other creditors of the prisoner, or so that the effect thereof 

would be to defeat or delay the creditors of the prisoner, or to diminish the property 

to be divided amongst his creditors, there would be a disposal by the prisoner 

of the goods otherwise than in the ordinary way of trade ; and that, as by the 

Insolvency law the transaction would be fraudulent, it would be held to have been 

prima facie tainted with fraud, and the onus would be thrown upon the prisoner 

of satisfying them that, in the particular transaction he had no intention to defraud. 

Charles Stuart Mbin, J. 
Supreme Court, Brisbane, 

2nd December, 1885. 

On Thursday, 3rd December, Lilley submitted that from the 
cross-examination of Howes it might be in the ordinary course 
of trade. There is no evidence that prisoner's act was not in the 
ordinary course of trade ; that is his particular trade in Towns- 
viUe. The Crown to prove it not so, should have put a witness 
in the box to ask him if he were acquainted with the business of 
a produce merchant and commission agent at Townsville, and so 
forth. It was never shown that Howes had any particular 
knowledge of business at all. The conviction should be quashed. 

Lilley C.J. : This is a special case stated by the learned Judge Lilley C.J. 
for the opinion of the Court, and the question, " was there any 
evidence to support the conviction." The prisoner was indicted 
under subsec. 15, of s. 206, of our Insolvency Act, for having within 
four months next before the presentation of his petition for 
adjudication, unlawfully disposed of, otherwise than in the 
ordinary way of his trade, some portions of his property which he 
had obtained on credit, and not paid for. Upon that indictment 
of course the jury must be satisfied before they acquit, that he 
had no intention to defraud. I have generally told a jury that 
they must be satisfied that there must be some prima facie case 
of fraud before they can deal with him safely under this particular 
section ; the evidence must show some prima facie case of fraud 
against him. If a man makes a disposition of his goods in such a 
way as to be obviously out of the ordinary course of trade, the jury 
may infer from that that he had some intent to defraud. The 
question really in this case for our determination is, was there any 
evidence that he disposed of them in any way other than the 
ordinary way of trade. AU other matters under the subsection 
are beyond dispute ; they were all proved. Now Mr. Lilley has 
argued that, before a man can be charged with disposing of goods, 
he must absolutely part with the property in them. I cannot 



184 QUEENSLAND JUSTICE OF THE PEACE. 

Eegina v. read the section in that way. I think if he puts away the goods 

PlEBEMONT. *' , 1 , 

or part or them under such circumstances that he exhibits an 

Lilley C.J. intent, that the jury are satisfied that he puts them away beyond 
the reach of his creditors under the statute, he might be held 
guilty of a misdemeanour under the subsection. It is not neces- 
sary that a man should absolutely part with the property, if he 
puts them beyond his power or control, or that of his trustee for 
division of the proceeds amongst his creditors, assuming that the 
disposition was not in the ordinary way of trade. The most 
important cases that have been cited were Ex parte Brett, In re 
Hodgson, and The Queen v. Thomas. In Ex parte Brett the 
Judge made an observation to which I fully subscribe : You 
cannot convict a man of one particular charge by showing some 
fraud which estabhshes another charge. In other words, you 
must prove the offence which you charge against a man, but the 
same set of circumstances may point to two distinct offences, 
and justify a conviction for one offence or the other. Take this 
statute for instance. Here is this subsection : it is an oSence 
to dispose of goods otherwise than in the ordinary way of trade, 
with intent to defraud, of course. Under subsec. 2 of another 
section, 208, if he has, intending to defraud his creditors, made 
any gift, deUvery, transfer of, or charge on his property, he may 
be found guilty of a misdemeanour under the act. Well, a de- 
livery is a disposal of goods ; so the same circumstances which 
point to an offence under the 15th subsection of s. 206, may point 
to a conviction under subsec. 2, of s. 208. Or again, circum- 
stances that justify a conviction under that subsec. 15, may justify 
a conviction iinder subsec. 14, of s. 206, for carrying on business in 
property obtained on credit under false pretences, and not paying 
for the same. So if Ponder, Evans & Co., had prosecuted him 
for that offence, he might on the same set of circumstances have 
been found guilty for that. Looking at the particular offence 
A\ith which he is charged, is there any reasonable evidence on 
which the jury might hold him to be guilty ? The facts are in 
very narrow compass ; within the four months previous to 
presentation of his petition, he orders two large parcels of goods 
from Ponder, Evan & Co., amounting in the aggregate to about 
£600. A portion of them he sent to the Queensland Mercantile 
& Agency Co. for disposal : they say on consignment for sale. 
Another large consignment he sent to his brother-in-law in 
Sydney, for disposal on consignment and return. Whether he 
intended that, or not, is a question for the jury. At the time he 



CRIMINAL REPORTS, 1860-1907. 185 

delivered these goods to the firm of which his brother-in-law was a Reoina v. 

1 ., . T 1 , r. ■. r , PlEKEMONT. 

member, there was evidence that that firm were creditors of the — - 

insolvent. There was also clear evidence that the Queensland LiHeyCJ. 
Mercantile & Agency Go. were creditors of the insolvent at the 
time they received the parcel of goods he transmitted to them. 
The question for the jury really was, was that a fraudulent prefer- 
ence ? The Judge rightly directed the jury that that was a 
fraudulent preference, if there was an intent to prefer. If he 
intended when giving them these goods to do so by way of prefer- 
ence, there was undoubtedly a fraudulent preference, because 
he was unable to meet his engagements at the time he dispatched 
these goods to the Q. M. & A. Co., and to the firm which included 
his brother-in-law. That was a fraudulent preference. Well, 
now, it seems to me, it may be a mere question of law under 
this subsec. 15, whether a man may make such a disposition that 
the Judge may be able to say that in law it was a fraudulent 
preference ; but generally speaking the cases that come under this 
subsection must be questions of fact for the determination of the 
jury. To dispose of otherwise than in the ordinary course of trade 
involves a question of fraud ; goods must be disposed of fraudu- 
lently, or the jury must fail to be satisfied that they were dis- 
posed of with intent to defraud. Fraud is manifold and various, 
and it would be impossible to lay down any absolute rule of 
judgment for Judge or Court in respect of fraud, inasmuch as the 
rule for the construction of such conduct must be as various as 
fraud itseH. It is the same in respect of trade. It would be 
impossible to say in each particular case, as a matter of fact, 
and especially in a new industry, what is the ordinary course of 
trade. There are cases in which no doubt it is obvious to ordinary 
common sense that the conduct of the insolvent was not in the 
ordinary course of trade. For instance, in that case of Reg. v. 
Thomas, in which I was surprised to see, Mr. Justice Lush felt 
it necessary to consult his colleague on circuit, in which a 
grocer in the village of Cheadle executed in' favour of his 
sister, to whom he was indebted, a bill of sale on the whole of his 
property, within four months of his insolvency, it seemed to me 
so obvious to ordinary sense that that could not be the ordinary 
course of trade of a grocer, that the consultation between the 
two Judges was unnecessary. It was a fraudulent preference, and 
he might have consulted his colleague as to whether it was a 
fraudulent preference at law, and his direction to the jury would 
be perfectly comprehensible under the circumstances, because he 



186 



QUEENSLAND JUSTICE OF THE PEACE. 



Beoina v. 

PlEEEMONT. 

Lilley C.J. 



said " upon the evidence already given you have no alternative 
but to find the prisoner guilty," therefore he rightly assumed 
it to be a question of law. But as a general rule the question will 
resolve itself into a question of fact, and the jury wiU decide 
from their daily experience. I think His Honor's direction to 
the jury was perfectly clear ; he regarded it as a fraudulent 
preference, and he might reasonably take that view ; and the 
jury might reasonably take that view. By delivering all these 
goods to his brother's firm, or to the Q. M. & A. Co., to one or 
other of them, he gave one creditor a fraudulent preference over 
his other creditors. If a fraudulent transaction, then it could 
not be in the ordinary way of trade. We have not yet reached 
that stage of commercial morahty in which fraud becomes part 
of the ordinary way of trade. We have no alternative but to 
declare that the conviction must be affirmed. The prisoner must 
be brought up before the Judge in the Criminal Court to receive 
sentence at the usual hour to-morrow morning. 
Conviction affirmed. 

Sohcitor for the prosecution : The Grown Solicitor. 
Solicitors for prisoner : Roberts & Roberts. 



1886. 
June. 

Lilley C.J. 
Harding J. 
Mein J. 



[Full Couet.] 
THE QUEEN v. AH SAM. 

[2 Q.L.J. 144. Note.— 29 Vic, No. 11, s. 15 Is repealed. See now s. 317 of Criminal 
Code. Compare s. 196 of Code and see Criminal Practice Rules Order II., 
rule 2, Wilson & Graham's Code, p. 392.] 

Offences against the Person Act of 1865 (29 Vict., No. 11, s. 15). 

Under sec. 15 of The Offences against the Person Act of 1865, where a person 
is charged with " shooting at " another with intent to do grievous bodily harm, 
it is not necessary, in an information charging the offence, to insert the word 
" at " although it is better that the pleader should follow the language of the 
Statute creating the offence. 

This was a special case stated by His Honor, Mr. Justice 
Cooper as follows : — 

The prisoner (a Chinaman) was tried before me at Townsville on the 28th April 
last. 

The information contained two counts, the first of which charged that he " one 
Ah Tie feloniously and imlawfully did shoot " with intent to murder the said 



CRIMINAL REPORTS, 1860-1907. 187 

Ah Tie ; and the second charged that he " one Ah Tie feloniously and unlawfully The Queen v. 
did shoot " with intent the said Ah Tie to do some grievous bodily harm. 

Just before summing up to the jury I for the first time attentively considered 
the form of these counts and pointed out to the Crown Prosecutor (Mr. Power) 
that I was unable to find any section of the Offences against the Persons Act, 
1865 which created the offence of " shooting " with intent, and that in my 
opinion there was no such crime at Common Law. 

Mr. Power then asked leave to amend the information by inserting the word 
" at " after the word " shoot " in both counts, which I declined to give though 
I would have done so if I had been of opinion that I had the power. I then asked 
the Cro^vn Prosecutor what course he invited me to take. He pressed upon me 
the fact that the information was a copy of one in constant use in the Crown Law 
Office at Brisbane and urged me to let the case go to the jury. I agreed to do so 
on the condition that I should state a Special Case on the prisoner's behalf. 

I then summed up and the jury convicted the prisoner on the second count. 

I sentenced him to five years' penal servitude, respited the execution of the sentence 

and reserved for the opinion of the Full Court the questions, whether the conviction 

is sustainable on the information as it stands, and whether I had the power to 

amend it in the way suggested. * 

Pope A. Cooper. 

Power, Northern Crown Prosecutor, appeared for the Crown ; 
lAlley, on behalf of the prisoner. 

Lilley : This is an offence created by Statute, and the exact 
words of the Statute should be followed. Section 15 of the 
Offences against the Person Act had the words " shoot at." The 
form of the ordinary information in Archbold, p. 710, 19th ed., was 
" did by drawing a trigger," * * " discharge at and against." 
Stephen's Law of Criminal Procedure, art. 244, p. 156, and Archbold, 
p. 64, and Bex v. Compton, 7 Car. and P., 139 ; Craven's Case, 
Beg. V. Buss, p. 14, referred to. 

Power was not caUed upon. He stated that the Judge was 
misinformed as to the form of indictment in question being 
copied from the Crown Law Office at Brisbane ; that was not the 
case. It was a form in use in the office at Bowen only. 

Lilley C.J. : We must take cases decided by single Judges LilleyC.J. 
as guides, not absolutely as binding authorities. They relate to 
many very varied Statutes ; while we may hsten with respect to 
the decisions of the very learned men who have presided over the 
EngHsh Courts, we must use our own reason upon our own Statutes 
here. In this matter we have no doubt that the information was 
sufficient. It contained two counts ; as to the first it is not 
necessary to make any observations, as the prisoner was not 
convicted on it. But upon the second, on which a conviction 



188 QUEENSLAND JUSTICE OP THE PEACE. 

The Queen v. was had, I must make one or two observations, though at no 
As^Sam. length. This second count charged that he " one Ah Tie felon- 
Lilley C.J. iously and unlawfully did shoot " with intent the said Ah Tie to do 
some grievous bodily harm. There is a slight inversion of ex- 
pression there. It would have been better if it ran, that he. 
Ah Sam, did feloniously and unlawfully shoot one Ah Tie, with 
intent, &c. The Enghsh of it is plain enough in the sense that I 
have last stated it, that he shot Ah Tie with intent to do Ah Tie 
grievous bodily harm. Now the language of the Statute is 
" shoot at." If the information had followed the Statute, it 
would have been, that he at one Ah Tie feloniously and unlaw- 
fully did shoot, with intent. In fact the difficulty has apparently 
arisen in the mind of the learned Judge from the omission of the 
word " at." The charge is, " shooting with intent," instead of 
" shooting at with intent." The case has been reserved by the 
Judge himself ; the counsel, or soUcitor, who defended the 
, prisoner did not see any difficulty. I confess none arises in my 

mind. I think, if a man is charged with shooting another with 
intent, that is sufficient to mean that he shot at him. At the 
same time I think it is better that the pleader should follow the 
language of the Statute creating the offence ; that is a sound 
general rule of pleading. But if there be an allegation of an offence 
by prisoner to a certain intent, although the precise — the very — 
words of the Statute be not employed, it is a sufficient allegation of 
the offence against the prisoner. It is a rule as old as — older than 
— Coke. He gave perhaps the aptest expression to it. " Pleading 
is the language of the law." But that language is not necessarily 
ipsissima verba of the Statute creating an offence. If the informa- 
tion be in English, and contain the precise allegation of the offence 
of which the prisoner is to be tried, that is sufficient ; and this 
information seems to have contained that precise allegation of- the 
offence on which the prisoner was tried. I think the conviction 
should be confirmed. 

Harding J. Harding and Mein JJ. concurred. 

Mein J. 

SoHcitor for Crown : The Crown Solicitor, Brisbane. 

SoUcitor for prisoner : Bernays, agent for E. A. Milford, Cairns. 



CKIMINAL EEPOETS, 1860—1907. 



189, 



[Full Coubt.] 
REGINA V. HINCKLEY. 

[2 Q.L.J. 182. — Note. — Sec. 48 of Offences Against the Person Act Is repealed. 
See now ss. 214, 215 of Criminal Code. See R. v. Camm, 1 Q.L.J. 136, ante 
p. 138.] 

The prisoner was indicted under s. 48 of the Offences Against 
the Person Act of 1865, and tried before The Chief Justice and a 
jury at the November Criminal Sittings at Brisbane. 

On the question of age, a married sister's evidence was the 
only available evidence of the date of the child's birth. She 
deposed to that event occurring either the 12th or the 20th of 
September, 1879 ; and that she was at home when her httle sister 
was born. 

Lilley, for the defence, raised the point that this was insufficient 
evidence ; and cited the case of Rex v. Wedge, 5 C. & P., 298 ; 
Archbold's Criminal Pleading and Evidence, 20th ed., 815. 

Lilley C.J. : If it had been a question of a day or so, as in 
that case, I should require something more ; but there is evidence 
here to go to the jury, as to the age of the child. There are 
three years to spare here. The sister does not swear to the day, 
but she says she was in the house at the time of her sister's birth. 
It is a matter for the jury. 

SoUcitor for prosecution : The Crown Solicitor. 
SoUcitors for prisoner : Chambers, Bruce, and McNab. 



1886. 
November. 



[Full Court.] 
REG. V. KOGHIE (a Malay). 

[2 Q.L.J. 187. — Kote. — Sec. 49 ol Criminal Practice Act of 1865 is repealed. See 
now ss. 668, 669, and 670 of Criminal Code.] 

Practice — Oaths Act Amendment Act of 1884, s. 2. 

A Mahommedan witness said he would be sworn on the Koran, a copy of which 
could not be obtained, and a form of affirmation was administered instead. 
Held, that the witness's evidence was not receivable upon such affirmation, 
but only on the oath upon the Koran. 

Special case stated by the Judge of the Northern District 
Court, under s. 49 of The Criminal Practice Act of 1865, as follows : 



1887. 
February. 



190 QUEENSLAND JUSTICE OF THE PEACE. 

Bbq. u. KoGHiB The prisoner was tried before me at the Criminal Sittings of the Northern District 

Court holden at Maokay on the 1st day of December, 1886, on a charge of unlaw- 
fully wounding one Saradim, a Mahommedan. 

The prisoner was undefended and did not understand English. 

Charles de Harte, who had had considerable experience as interpreter in courts 
in Java, and who is a cultivated and intelligent man, was sworn as interpreter. 

Upon Saradim getting into the witness box, he was asked by the interpreter 
how he would be sworn and he replied " On the Koran." 

I directed the proper officer to swear the witness on the Koran. 

The Registrar then informed me that there was no Koran in Court, and after 
inquiry I ascertained that none could be procured. 

The interpreter informed me there was a form of affirmation which was some- 
times used by Mahommedans in lieu of the oath on the Koran, but that such affirma- 
tion was not as binding as the oath, it not being considered as solemn a proceeding 
by the Mahommedans. 

Upon this I intimated to the Crown Prosecutor that I could not receive the 
evidence of Saradim unless under seal of an oath on the Koran. 

The Crown Prosecutor thereupon pressed me to allow the witness to affirm 
and submitted that section 2 of The Oaths Act Amendm.Ritt Act of 1884 provided 
for this position as the words " the nature of an oath " therein must be read as 
" the nature of an oath on the Bible." 

I was informed that in the Police Court evidence by Mahommedan witnesses 
was invariably received upon affirmation, and also that without the evidence of 
Saradim the Crown would be unable to proceed, and that an adjournment would be 
inconvenient. 

After hearing the Crown Prosecutor I said that in my opinion section 2 did not 
apply as the witness neither objected to take an oath nor was incapable of compre- 
hending the nature of an oath, nor was I satisfied that an oath would have no 
binding effect on his conscience within the meaning of that section. 

Upon the whole, however, having in view the practise of the Police Court, I 
deemed it advisable to get an authoritative exposition of the law and accordingly 
admitted the evidence upon affirmation and reserved the point for the considera- 
tion of the Full Court. 

The prisoner was convicted and sentenced to 12 months' imprisonment with 
hard labour. 

I respited execution of the judgment and committed the prisoner to prison by 
virtue of section 48 of The Criminal Practice Act of 1865. 

The questions for the consideration of the Full Court are — 

1. Was the evidence of Saradim receivable otherwise than upon oath on the 
Koran ? 

2. What order does the Full Court see fit to make ? 

A. B. Noel, 

Judge N.D. Court. 
Southport, Jan. 18, 1887. 

Power appeared for the Crown. Prisoner was not represented. 



CEIMINAL REPORTS, 1860-1907. 191 

LiLLEY C.J. : Here the man said that he would be sworn on ^^°- «• Koohib. 
the Koran. That was a binding oath on his conscience ; it Lilley C.J. 
as obhgatory on him. Evidence was admitted against the 
prisoner which ought not to have been admitted ; and it was the 
only evidence against him. It is clear the prosecutor ought 
to have been sworn on the Koran ; the oath should have been 
administered to him which he declared would be binding upon 
his conscience. The order, under the 49th section of the Criminal 
Practice Act, will be — judgment to be avoided and the prisoner 
to be discharged ; this order to be entered on the record. 

Solicitor for the Crown : Gill, Crown SoUcitor, Brisbane. 



[Full Court.] 
SWANWICK V. MILLS. 

[3 Q.L.J. 12.— Note.— 29 Vic, No. 6, s. 107, is repealed. See now s. 135 of Criminal 

Code to like effect.] 

The Larceny Act of 1865 (29 Vict., No. 6), s. 107. 1887. 

April. 
An advertisement appeared in The Telegraph newspaper, of which the appellant 

was the printer, in these words : — " Lost, from 46 Charlotte Street, black and Lilley G.J. 

tan terrier pup. Finder handsomely rewarded ; no questions asked," contrary to Mein J 

the provisions of s. 107 of 29 Vic, No. 6. 

HM, that the words " Lost a black and tan terrier pup " amounted to prima 
facie evidence against the appellant that a dog had been lost. 

Hdd also, that an action will lie against both the printer and publisher of an 
advertisement, within the meaning of the said section, and although the printer 
and the publisher be one and the same person, he commits two separate offences 
by printing and publishing such an advertisement. 

This was an action tried before The Hon. The Chief Justice 
at the March Civil Sittings in Brisbane ; and was brought by 
plaintiff against defendant as the printer of The Telegraph news- 
paper, under the provisions of the Larceny Act of 1865, s. 107, 
for printing in the issue of that paper on August 6th, 1886, the 
following advertisement : — 

"Lost, from 46 Charlotte Street, black and tan terrier pup. 
Finder handsomely rewarded ; no questions asked." |a^ 

On the hearing, The Chief Justice had directed a verdict for 
plaintiff ; and judgment for £50 and costs had been entered 
accordingly. 

His Honor held that proof of actual loss or steaHng of the dog 
was not necessary on the part of the plaintiff. 



192 



QUEENSLAND JUSTICE OF, THE PEACE. 



swanwigk v. 
Mills. 



Harding J. 



Power, Byrnes with him, on behalf of the appellant, the defend- 
ant below, now moved for a judgment of non-suit ; that the 
judgment for plaintiff for £50 be set aside with costs ; or that 
defendant might be at liberty to plead the judgment recovered in a 
previous action against him as publisher of The Telegraph. He 
submitted that there was no offence under s. 107 of the Larceny 
Act, which is a penal clause, unless there was proof of loss or 
stealing of the property. If there was, it was not framed to catch, 
both printer and publisher for one offence. 

Harding J. referred to Cripps v. Burden, 2 Cowp., 640. 

Byrnes followed. The section compelled the construction 
that there must be evidence of a losing or steahng ; the advertise- 
ment must be in respect of property lost or stolen. The pup 
may have been lost or not ; The Telegraph did not, by admitting 
it and pubUshing it in their columns, teU the world at large that 
that advertisement was true. 

Lilley, King with him, for respondent, the plaintiff below, were 
not called upon. 

Harding J., in delivering judgment, said : This is an appeal 
from a judgment in an action tried by His Honor The Chief 
Justice, the plaintiff being F. ff. Swanwick, and the defendant 
C. Mills. In that action the plaintiff stated that on the 6th of 
August, 1886, a certain advertisement in these words, 

"Lost, from 46 Charlotte Street, black and tan terrier pup. 
Finder handsomely rewarded; no questions asked," 

appeared in The Telegraph, of which the defendant was printer. 
His Honor gave judgment for the plaintiff. The action was 
brought under s. 107 of the Larceny Act, which enacts that: — 

"Whosoever shall publicly advertise a reward for the return 
of any property whatsoever which shall have been stolen or lost, 
and shall in such advertisement use any words purporting that 
no questions wiU be asked, or shall make use of any words in any 
public advertisement purporting that a reward will be given 
or paid for any property which shall have been stolen or lost, 
without seizing or making any inquiry after the person producing 
such property, or shall promise or offer in any such public 
advertisement to return to any pawnbroker or other person 
who may have bought or advanced money by way of loan upon 
any property stolen or lost the money so paid or advanced, 
or any other sum of money or reward for the return of such 
property, or shall print or publish any such advertisement, 
shall forfeit the sum of £50 for every such offence to any person 
who will sue for the same by action of debt, to be recovered with 
full costs of suit." 



CRIMINAL REPORTS, 1860-1907. 19^ 

His Honor held that it was unnecessary to prove, in order to ^MiLtf " 

support the claim, that a dog had been lost or stolen. Whether or 

no it was necessary to construe the statute to that extent, I do not 
consider it was necessary in order to support the present action. 
Although possibly and very probably His Honor's ruling was 
correct, my decision turns upon these circumstances : — In proof 
of the plaintifE's case the advertisement was put in, which states 
as foUows, — Lost, * * * black and tan terrier pup. That 
having been put in as published by the defendant amounts in 
my mind to prima facie evidence against defendant in the nature 
of an admission by him that such a dog had been lost, and at all 
events supported the action until the contrary was proved, 
In other words, the onus of proof was shifted from the plaintiff 
to the defendant, and it lay upon the defendant to prove that such 
a dog had not been lost. His Honor accordingly held that a dog 
had been lost ; and in my opinion that was sufficient to support 
the action. 

Then it has also been contended by the defendant that an action 
had been brought on the same advertisement by the same plaintiff 
for a penalty under the same section in respect of the publica- 
tion of this advertisement. The defendant says, in answer to 
that, we have already suffered judgment against us for the 
pubhcation ; you cannot now sue us for the printing. That 
depends on the construction of the latter part of the section. I 
have read " or shall print or publish : " — in order to support the 
defendant's contention that " or " must be changed to- the word 
" and," and the section must read " print and publish." I think 
that " or " makes the section disjunctive ; the words " print or 
publish " mean two different functions, and that whether the 
paper is printed and pubhshed by the same person, or printed 
by one and pubhshed by another, makes no difference. The 
man who prints it, whether he be the same or not as the pubhsher, 
is forbidden to print the advertisement ; and the man who pub- 
lishes, whether he is one and the same or not as the printer, 
commits a separate offence in pubhshing it. I consider that the 
first is no bar to the second. On the whole, I think the judgment 
must be supported with the usual result, that defendant must 
pay costs. 

Mein J. : I am also of opinion that this appeal should be Mein J. 

refused with costs. It appears to me that the last portion of the 
section was framed in the interests of pubHc morahty ; and that 
any person, who either prints or pubUshes an advertisement 



194 QUEENSLAND JUSTICE OP THE PEACE. 

SwANwicK V. professing to offer a reward for stolen property, with the condition 

' attached that no questions will be asked, should be Uable to the 

Mein J. penalty imposed with costs. Printing and publishing are not 
contemporaneous acts. First printing takes place ; then publish- 
ing, after the lapse of an interval of time. As pointed out by 
The Chief Justice and conceded by counsel for the appellant, 
printer and publisher are not one and the same person ; and it 
was conceded that, where not identical, each would be liable 
to a separate penalty. That admission, I think, puts the appellant 
out of court. If the law says a man shall not do a certain thing, 
and, when he does, shall be liable to a penalty, and that man 
goes for and does an additional thing, which is forbidden, he 
becomes liable to a separate penalty. If, after printing, he goes 
on and pubhshes, he is liable to the full penalty under the statute. 
On that I think the appellant fails. On the first point, it is said 
that the onus is thrown on the plaintiff of showing that the article 
advertised was in fact lost or stolen. In this case the appellant 
has printed a pubhc advertisement in which it is stated as a fact 
that a certain dog has been lost, and that a reward will be given 
for its return, and " no questions asked." If we were to hold 
that it was necessary for the person who sues for the penalty 
in all such cases to prove the fact which has been admitted by 
the advertiser, we would in most instances make this Act a dead 
letter. The object of the Legislature is that a person who makes 
admissions is estopped from denying the fact in an action of this 
sort. It is a prima facie admission on his part of the statement 
made. If he had pleaded that there was no loss of an animal from 
46, Charlotte Street, I am inclined to think that, if he had proved 
that in evidence, plaintiff would have been out of court. But 
there was no plea nor evidence of the kind in this case ; and, as in 
all other cases, the appellant is estopped by his own admissions. 
I think he has failed in his appeal. 

Lilley C.J. LiLLEY C.J. said : It is hardly necessary perhaps for me to 

deliver a judgment at any length on the matter, as I agree entirely 
with the judgment that the motion must be dismissed with costs. 
I adhere to my opinion that, where an advertisement of this kind 
is inserted in a pubUc print, stating that an animal has been lost 
or stolen, — I here differ from my brother Mein — it would be no 
answer, even by way of plea, that no animal had been lost or 
stolen. I think a defendant is precluded, as against an informer, 
by his own statement that an animal is lost or stolen. That is my 
opinion ; I consider it is an absolute estoppel. As to the remain- 



CEIMINAL RBPOETS, 1860—1907. 195 

der of the judgment, I feel it is perfectly clear that the poUcy of ^^mIl™ "' 

the latter part of the statute is, as pointed out by my brother 

Mein, to stop persons from encouraging others to publish these LUley u.J. 
advertisements, armouncing that they are willing to compound a 
felony. To throw upon the informer the onus of proof would be a 
great and unnecessary demand, which he would generally be 
unable to satisfy. There is no name of the person who, in this 
instance has lost the animal. How is an informer to prove the 
loss under these circumstances ? There is generally only the 
advertisement — nothing but that — that an animal has been lost 
or stolen, and that, if the person having it will take it to a particular 
place, no questions will be asked. The statute, it seems to me, 
is directed against a breach of duty — the immoraUty of printing 
or pubUshing an advertisement that a person is wilUng to com- 
pound a felony. It is directed also to the repression of anything 
that will prevent the discovery, conviction, and punishment of a 
person who has committed a felony. I agree with my learned 
brothers, except in that expression of opinion of my brother 
Mein that — of course I express only my individual opinion — it 
would be a defence to say the dog had not been lost or stolen. 
The question is still open to an enterprising pleader who cares to 
try it. 

SoHcitors for appellant : Chambers, Bruce, and McNab. 
SoHcitor for respondent : Winter. 



[Maeyboeough Ciecuit Couet.] 

THE QUEEN v. HAMILTON. 

[3 Q.L.J. 78.— Note.— See deflnition o! " dwelling-house " in see. 1 of Criminal Code.] 

Criminal law — Arson — House — Injuries to Property Act of 1865 1888. 

(29 Vict., No. 5), s. 3. mhjiprii. 

A tent of canvas occupied for the time being af3 a dwelling s a house within Lilley G.J. 
the meaning of the statute, 29 Vict., No. 3, s. 3. 

The Queen v. Dixon, 2 Q.L.J. 81, followed. 

The prisoner was tried at the Maryborough Circuit Court on 26th 
April, 1888, upon an information under s. 3 of 29 Vic, No. 3, for 
feloniously, unlawfully and maliciously setting fire to a dwelling- 
house. 



196 



Thk Qceen v. 
Hamilton. 



LiUey C J. 



QUEENSLAND JUSTICE OF THE PEACE. 

Chubb Q.G., for the prosecution, opened that it would be shown 
in evidence that the dwelKng-house in question was an ordinary 
canvas tent, occupied and used by its owner as a dweUing, and 
submitted, on the authority of The Queen v. Dixon, 2 Q.L.J. 81, 
that such a structure was a house within the meaning of the 
statute. Evidence having been adduced establishing these facts, 

LiLLEY C.J., in summing up, directed the jury that a tent so 
occupied and used, was a house, within the meaning of the section. 



1888. 
Jut. e. 

Lilley C.J. 
Harding J. 
Meiii J. 



[Full Court.] 
REGINA V. ABRAHAM STREET, THE YOUNGER. 

[3 Q.L.J. 88.— Note. — Criminal Practice Act of 1865 is repealed. See now s. 668 of 
Criminal Code. As to joinder ol charges in information, see s. 568 of Criminal 
Code. As to stealing as a clerk or servant, see s. 398 VI. of Criminal Code.] 

Embezzlement — Proof of status as clerk — Admissibility of a proof 
of debt sworn to by prisoner subsequent to date of embezzlement 
— Admissibility of a power of attorney dated five months after 
embezzlement. 

One S., being in the employ of B. and Co., was charged with three several! 
embezzlements, on 15th March, 3rd June, and 12th July. At the trial three 
proofs of debt were tendered, dated lith April, 21st May, and 26th July, sworn to- 
by S. as the clerk of B. and Co. 

The proof of 26th July was objected to by counsel for the prisoner, but admitted. 

Counsel for the prisoner tendered a power of attorney given by B. and Co. 
to the prisoner, dated 16th December in the same year. This was rejected. 

On the admissibility of these two documents being reserved for the consideratioa 
of the Full Court, 

Held, that averments made by a man at not too remote a period from the date 
of the transactions impeached may be given in evidence against him, and that 
the proof of debt of 26th July was therefore rightly admitted. 

That the power of attorney, as being too remote, was properly rejected. 

Tbat these proofs of debt constituted a chain of evidence extending over the 
period within which the embezzlements were charged to have been committed 
and that in the one objected to S. swore to transactions by the firm during the' 
same period. 

Conviction affirmed. 

Case stated for the consideration of the Judges of the Supreme 
Court by Mr. Justice Mein, pursuant to the provisions of The 
Criminal Practice Act of 1865, as follows : — 



CEIMINA.L REPORTS, 1860—1907. 197 



Abraham Stueet, 

THE yOHNGEB. 



The prisoner was tried before me on the 31st May and the j^^l^^f™^, 
1st June, 1888, at the present Criminal Sittings of this Court 
in Brisbane, on an information containing three counts, whereby 
he was charged with having (1) on the 15th March, 1886, embezzled 
£60 as clerk to Barron Lewis Barnett and another, (2) on the 3rd 
June, 1886, embezzled £330 as clerk to the same persons, and 
(3) on the 12th July, 1886, embezzled £120 as clerk to the same 
persons. The jury found him guilty of the charges contained 
in the first and third counts, and not guilty of the charge con- 
tained in the second count of the information. 

The prisoner, several years ago, entered the service of Emanuel 
Barnett and Barron Lewis Barnett, who traded as merchants 
in Brisbane under the firm of E. Barnett & Co., and remained 
continuously in their service up to and throughout the year 1886. 
During the whole of that year he' held the position of confidential 
clerk to the firm, and received for his services a salary of £300 per 
annum, paid by monthly instalments. Mr. Emanuel Barnett 
lived in England, and Mr. B. L. Barnett, the partner resident 
here, had the management and control of the business in Queens- 
land, and the prisoner was " under his orders." The prisoner's 
duties, prior to May, 1886, were to keep the cash-book, to attend 
to all the banking accounts, to receive accounts when paid, to 
superintend all the clerical work in the counting-house, and to 
exercise a general -superintendence and management over the 
secured customers of the firm. The cash-box was kept by 
Mr. B. L. Barnett up to May, 1886. WhUst it was so kept it 
was the duty of the prisoner, when' he received any cash or 
cheque on behalf of the firm, to at once credit in the cash-book 
the customer who paid the cash or cheque with the amount so 
paid. It was then his duty to hand over to Mr. B. L. Barnett 
the identical cash or cheque so paid and credited. In May, 
1886, Mr. B. L. Barnett ceased to keep the cash-box, and the 
prisoner was entrusted with the duty of keeping it and the firm's 
cash. Thereafter it was the prisoner's duty, after crediting 
customers in the cash-book with the cash or cheques paid by them, 
to pay all cheques and large amounts of cash to the credit of the 
firm of E. Barnett & Co. with their bankers. 

The prisoner, on the 15th March, 1886, received on behalf of 
E. Barnett & Co. from one of their secured customers a cheque 
for £60, and, contrary to his duty, cashed the cheque at the bank 
on which it was drawn, and appropriated the proceeds to his own 
Tise, without either crediting the customer or debiting himself 
with the amount in the cash-book, or in any of the other books 
of the firm. 

On the 12th July, 1886, the prisoner received from the same 
secured customer, on behalf of E. Barnett & Co., another cheque 
for £120, and, contrary to his duty, caused such cheque to be 
cashed at the bank on which it was drawn, and appropriated the 
proceeds to his own use, without either crediting the customer 
or debiting himself with the amount in the cash-book, or in any 
of the other books of the firm. 



198 QUEiENSLAND JUSTICE OF THE PEACE 

Beginai). It is unnecessary to refer to the moneys mentioned in the 

Abraham Stkeet, gegon^ count of the information, as the prisoner, as abeady 
THKTO0NGEE. gj.g^(.g^^ ^^^ acqulttcd of the charge therein contained. 

The prisoner's main defence to the whole information was 
that he was not a clerk within the meaning of the statute, but 
merely the financial agent of E. Barnett & Co. 

There was no written agreement between the prisoner and 
his employers, and the evidence above stated as to his position 
and duties was given by Mr. B. L. Barnett. 

During the trial, Mr. Chubb, Q.C., who prosecuted on behalf 
of the Crown, tendered as evidence in support of the information : 
— (1) a proof of debt in the insolvent estate of J. M'Alpine, 
sworn and made by the prisoner on the 21st May, 1886, on behalf 
of E. Barnett & Co. ; (2) a proof of debt in the insolvent estate 
of A. J. Bing, sworn and made by the prisoner on the 14th April, 
1886, on behalf of E. Barnett & Co. ; and (3) a preliminary proof 
of debt in proceedings for liquidation by arrangement or com- 
position instituted by G. Chadwick the younger, sworn and made 
by the prisoner on the 26th July, 1886, on behalf of E. Barnett 
& Co. In each of these proofs of debt the prisoner deposed 
that he was a " clerk to E. Barnett & Co." The last- mentioned 
proof related to goods that had been supplied by E. Barnett & 
Co. to the debtor between 5th May and 26th June, 1886, and to 
promissory notes that had been made by the debtor in favour 
of E. Barnett & Co. between the 19th April, 1886, and the 14th 
May, 1886. The prisoner's counsel, Mr. Power, objected to the 
admission of each of the proofs. I overruled his objection, 
and admitted the three proofs in evidence. The proofs so admitted 
accompany this case. 

Mr. Power tendered, as evidence on behaK of the prisoner, 
a power of attorney made by Mr. B. L. Barnett on the 16th 
December, 1886, in favour of his brother, Mr. E. M. Barnett, 
and the prisoner. By such power of attorney Mr. B. L. Barnett 
substituted, with certain exceptions, powers that by an. earlier 
deed poll had been conferred on him by his partner, Mr. Emanuel 
Barnett, and conferred like powers, on his own behalf, on the 
same donees. The effect of the power of attorney was to repose 
on the prisoner and Mr. E. M. Barnett jointly, and, in the event of 
of the absence, illness, or incapacity of either of them, but so long 
only as such absence, iUness, or incapacity continued, in the other 
solely, with specified reservations, the management and control 
" of the business of E. Barnett & Co., during the absence from 
Queensland of Mr. B. L. Barnett. The power of attorney accom- 
panies this case. I refused to admit it in evidence, on the ground 
that it was irrelevant and could not afiect the status of the 
-.prisoner on the dates mentioned in the information. 

In my charge to the jury I told them not to regard the 
proofs of debt that were admitted by me as evidence of the 
character or capacity in which the prisoner was employed by 
E. Barnett & Co., but to treat them simply as evidence of the 
fact that the prisoner was in that firm's employment on the dates 
when the proofs were respectively made by the prisoner. 



CRIMINAL REPOETS, 1860-1907. 199 

On the conclusion of my charge to the jury, the prisoner's Beqina v. 
counsel requested me to reserve the following questions of law ^'^''^ham Street, 

. ,, ^ -J i- St J.T ■ ri 1. THE YOnNQER. 

tor the consideration of this Court : — 

(1) Was the proof of debt, dated the 26th July, 1886, properly 

received in evidence ? 

(2) Was the power of attorney of the 16th December, 1886, 

properly rejected ? 
I did not pass judgment on the prisoner, but postponed such 
judgment until the questions reserved had been decided by this 
Court, and I committed the prisoner to prison, and he now is in 
prison. 

Charles' Stttaet Mbin, J. 
2nd June, 1888. 

Power and lAlley appeared for the prisoner ; Chubb Q.G. and 
Beat for the Crown. 

Power : The issue was — ^Was the prisoner a clerk on the date 
of the alleged embezzlement ? Was he a clerk on 12th July ? 
There should be no presumption in a criminal case. There was 
no objection to the two first proofs of debt that were put in evi- 
dence ; but the third was remote, and the conviction therefore 
bad. R. V. Gibson, 18 Q.B.D. 87, R. v. Fairie, 8 E. & B. 486. 

LiLLEY C.J. : There is a chain of proofs beginning in April, one 
in May, and one in July. The two first lead up to the third ; 
as Unks in the chain of proofs none of them is remote. We are 
unanimous against you on that point. 

Power : As to the power of attorney of December, 1886, the 
Crown pressed their objection to its admission, and His Honour 
rejected it. If the document of 26th July was admissible, that 
one of December should also have been. There was some evi- 
dence that prisoner was probably a financial agent, with more 
power than a clerk. It is no doubt a question of degree of 
remoteness. 

LiLLEY C.J. : We do not think the power of attorney was 
admissible ; or that it would have served you, if admitted. 

lAlley followed. The Crown asserted that on 15th March 
prisoner was a clerk, again on 3rd June, and again on 12th July. 
By way of showing that he was a clerk on 12th July, they put in 
a proof of debt sworn some days after that date in which h© 
admitted that he was a clerk. There was nothing in that proof 
to show that he knew anything of previous transactions ; there 
was nothing in The Insolvency Act requiring him to know th© 
business of the firm. 



200 QUEENSLAND JUSTICE OF THE PEACE. 

Eegina v. Mbin J. : Then how does a man swear that another is indebted 

^;rZ';ar'' to the erm of which he is an employ^ ? 

Lilley : If he could not do so, no more could an executor swear 
to the business of a testator who had carried on that business 
himself. 

Lilley C.J. : The executor would make his affidavit in proper 
form, no doubt. The Insolvency Act does not allow a man to 
swear a proof of debt as of his own knowledge, when he actually 
does not know, but is merely informed. If prisoner swore falsely 
in this case, the affidavit may be bad under the Insolvency Act ; 
still it is admissible evidence per se in this trial. 

Chubb Q.C. and Real were not called upon. 

Lilley C.J. LiLLEY C.J. : The two points reserved for the prisoner have 

been put strongly by Mr. Power and Mr. Lilley. In this ease, 
1st, was the proof of debt dated 26th July, 1886, properly received 
in evidence ? That one only is assailed. In order to see whether 
it was properly received in evidence, there are two Hues of circum- 
stances, either of which, to my mind, would determine the ad- 
missibility of the document. The first is that between 15th 
April and 26th July there were a series of proofs, so to speak, in 
which the defendant swore that he was a clerk to Barnett & Co. 
Now the embezzlements were charged as having taken place on 
15th March, 3rd June, and 12th July. The only one of those 
dates not within the period covered by these proofs, is that of 
15th March, and that is before. With respect to the others, we 
may presume that defendant had continued to be a clerk during 
that period ; and with respect to 15th March, we may presume 
that he was a clerk before, and continued to be a clerk after that 
date, since he swears that transactions of the firm in December, 
1885, were within his own knowledge. The proof of 14th April 
contains the statement that the facts were within his own know- 
ledge, and, notwithstanding that that averment is not in the proof 
of 26th July, yet, when a man swears to another's affairs, we may 
take it that they are within his own knowledge. We must take 
it that between these extreme dates of dishonest transactions, 
the defendant may be reasonably believed on his own oath to 
have been a clerk. I think that averments made by a man at 
not too remote a period from the date of the transactions im- 
peached may be given in evidence against him. The question 
of remoteness is a subject for the judge, and he must consider it. 
I must take it that no such objection was raised here, and that, 



CRIMINAL REPOETS, 1860-1907. 201 

if it had been, my learned brother should have overruled it, . Reqina v. 
, '' Abraham Street, 

because here the proofs are made at periods not too remote from thk younoer. 

the transactions which took place before 15th March, or just .. ~ , 

immediately before 12th July. On the ground that the extreme 
dates were not too remote either way, I must hold that the 
evidence was admissible. 

From every point of view, there was a chain of circumstances 
deposed to by prisoner in these proofs which would strengthen 
the presumption of continuance, that is, that he was a clerk 
during the whole of the period sworn to in these proofs. In the 
first of them, that of 21st May, the prisoner Street swore that 
M' Alpine was indebted to Barnett & Co. in £26 odd, and that 
Barnett & Co. held securities for that, one dated so far back as 
1st December, 1885, and the other being after March, 1886, and 
that the debt was incurred, and for the considerations above 
stated, within his own knowledge. Then there is a subsequent 
proof of 14th April, in which he goes further back still, and swears 
in 1886 that a man named Bing was indebted to Barnett & Co., 
to his own knowledge, so far back as 1st October, 1885. Then 
comes the proof of 26th July, on which the question of admis- 
sibility has been alone raised, and in which he says that he is a 
clerk as in the other proofs, and that George Chadwick is indebted 
to Barnett & Co. in £317. I think that, when a man swears to 
that, he swears from knowledge ; it is not a proof from informa- 
tion and belief, but by one who knows. He may do so as one 
engaged in the business from day to day. In that, he goes back as 
far as 19th April, setting out various securities, and the particulars 
of debts. That proof is admissible on two grounds, first, that it 
is not too remote from the other transactions, and second, that 
he deposes that he is a clerk. That status may most reasonably 
be presumed to have continued from 15th March to 12th July. 
Then this proof was rightly admitted. Founded on the previous 
proofs, it is the concluding link in a chain, of which the two pre- 
vious proofs are links, and concludes the previous presumption, 
which the jury may take for a fact, that he was a clerk during the 
whole period of the information, before and after those three 
dates, when he is alleged to have appropriated his master's money. 
My learned brothers agree with me that the convictions must be 
upheld. 

HARDi2fG J. : The prisoner was indicted for embezzlement, Harding J. 
and, in cases of this crime, the law allows three separate charges 
to be proceeded upon one information, so that there were at this 



202 



QUEENSLAND JUSTICE OF THE PEACE. 



Eegina v. 

Aebahaiu Stbket, 

tbe yobkgeb. 

Harding J. 



time before the jury the charge of embezzlement on 15th March, 
3rd June, and 12th July. As to each of these charges the evi- 
dence must be sufficient to convict the prisoner. The charge 
being for embezzlement, one of the issues must be, and was, 
whether at the time of the offences charged to have been com- 
mitted, the defendant vi^as a clerk to the owner of the property 
said to have been embezzled ? This was in issue. Secondly, the 
prisoner raised the issue, that, if it was proved at any particular 
moment that the relation of clerkship existed, yet directly after- 
wards it had ceased to go on. In the course of the trial two docu- 
ments were tendered, one of 21st May, the other dated 14th April, 
Now, these two documents were clearly admissible, without 
anything as to their contents, as to the embezzlements charged 
to have taken place on 3rd June, and 12th July. They were 
admissions of his status at the time just before those embezzle- 
ments. These were put in and contained on the face of them 
admissions by the prisoner, on the dates they were sworn, that 
he was a clerk — that that relation existed between him a^d the 
parties from whom the money was embezzled. Now, the first 
one, that of 21st May, being put in, it constituted the relationship, 
and from that a presumption arose that that relationship con- 
tinued, until it was rebutted, and it at once threw the onus on 
the prisoner of rebutting that presumption. Then, the one of 
14th April was put in, and it shows an admission of the relation- 
ship then, and raises a presumption that it existed and continued 
to exist. That one of 14th April strengthens the one of 21st May. 
So far, then, we have a relationship proved to exist on 21st May 
and 14th April. Another document is then tendered, dated 26th 
July. But it must be remembered that the issue was that this 
relationship was presumed to continue until shown to have been 
put an end to. It is a contention in issue that he was a clerk, 
and, this being put in, it goes to strengthen the presumption that 
the relationship continued right through. On that ground alone 
I think it was receivable. That would go only as to the acts 
charged on 3rd June and 12th July. So far as that goes, I do not 
think there can be the least possible doubt as to its admissibiUty, 
nor am I going to throw any doubt on it, because they were rightly 
admitted. In these documents, the deponent acknowledged 
himself at the time to be a clerk. He speaks of his own 
knowledge, because a man making an affidavit always 
speaks of his own knowledge, unless he qualifies it by 
showing the sources of his information. He omits here 



OEIMINAL EEPOETS, 1860—1907. 203 

to give any sources of information, and does it at his . Begina v. 

., . , 1 , n ,. Abraham Street, 

peril, ana it would be for a jury, on an indictment for the YonNOER. 

perjury, to say whether he did so wilfully. But here, speaking ^ ^^ j 

without quaHfication, he asserts that he knows the facts stated 

therein. If he did, these dates run back behind 15th March, and 

running back as they did, it was a question for the jury to say : 

Do we beheve what this man then swore on his oath ; that he 

knew in connection with Barnett's business these facts stated ? 

If not, we must believe that he was intentionally swearing falsely. 

That was a question for the jury, whether or not they gave 

credence to what was laid before them. If they did, why, from 

that, though not direct evidence, it was a circumstance from 

which they were entitled to infer that he was a clerk during that 

period. So that I think the documents were properly before the 

jury as to each charge of embezzlement then being tried. Then 

it was said that a document tendered by Mr. Power, on behalf of 

the prisoner, was improperly rejected. This document was dated 

16th December, 1886. As compared with the dates of the 

embezzlements charged, I think that document was properly 

rejected. I need not give further grounds for my judgment. 

Mein J. : I concur. Mein J. 

LiLLEY C.J. : Our answer, then, to the first question is. Yes ; LiUey C.J. 
and to the second. Yes. The convictions are affirmed, and the 
prisoner is ordered to be brought up for sentence before our brother 
Mein on Wednesday morning. 

Solicitors for prisoner : Chambers, Bruce & McNah. 

Solicitor for prosecution : Crown Solicitor. 



[ToowooMBA Circuit Coitrt, Criminal.] 

REGINA V. KNACK. 

[3 Q.Ii.J. 101. — Note. — See sec. 572 of Criminal Code as to amendment of Indict- 
ment.] 

Information for infanticide — Two counts — Information quashed — 1888. 

Second information — Sex of child unspecified — Information nth July, 

quashed — Third information — Amendment of amended inform- Harding J. 
ation. 

Chubb Q.C., for Crown, presented an information against Ellen 



204 QUEENSLAND JUSTICE OF THE PEACE. 

Heoika u. Knack. Knack, containing two counts, (1) that she had murdered a male 
child, (2) that she had murdered a female child. 

Macnaughton, for prisoner, objected to double count. 

Harding J. ordered the information to be quashed. Archbold, 
19th Ed., 49. 

Chubb Q.C. then presented an information against the prisoner 
for the murder of a child, name unknown. 

Macnaughton objected to the information, on the ground that 
the sex of the child should be stated ; and, if that objection be 
overruled, on the ground that there should be some allegation in 
the information that the sex was unknown to the Prosecutor. 

Hakding J. intimated that he did not consider mention of the 
sex absolutely necessary, if unknown. 

The information was quashed on Chubb consenting to Mac- 
naughton's application. 

Chubb Q.C. then presented an information for the murder of a 
female child, name unknown. 

Macnaughton objected on the ground that the Court had no 
power to amend an amendment. Archbold, 19th Ed., 225. 

This objection being overruled, the trial proceeded in the 

usual course, and prisoner was acquitted. 
< 

Solicitor for prisoner : Murray, Toowoomba. 



[Brisbane Criminal Sittings.] 
REGINA V. ROCHE. 
[3 Q.L.J. 139.— Note.— See sec. 613 ol Criminal Code, and see B. v. Kovalky, 6 

Q.L.J. 219, post.] 

1889. Practice — Plea — Allegation of insanity — Jury sworn to try the 

a7th, asth May. same — Right to begin — Insanity Act, s. 48. 

Harding J. A prisoner committed for sentence from Inferior Court, allowed to withdraw 

plea of guilty, on his counsel alleging insanity, and on the plea of not guilty being 
entered a jury sworn to state whether prisoner understood proceedings of the Court. 

On the finding of the jury that the prisoner did comprehend the proceedings 
and was sane, it was ordere'd that the plea of not guilty be withdrawn and that 
a plea of guilty be entered instead. 

Hdd, the right to begin is with the prisoner, on whom the onus to prove insanity 
lies. 

Segiiia v. Davies, 3 C. and Kir., 329, not followed. 

Regina v. Turton, 6 Cox C.C. 385, followed. 



CRIMINAL REPOETS, 1860—1907. 205 

Information against John Roche for larceny. The prisoner Kbginaj^Boohb. 
was committed for sentence from the Police Court. 

Wilson, for prisoner, asked to have the plea in the inferior 
Court withdrawn and made a statement, alleging insanity on the 
part of the prisoner at the time of arraignment. 

Mansfield, for the Crown, submitted that unless it could be 
shown that the prisoner was insane at the Police Court, 
when he made his plea of guilty, it would be of no avail. 

Wilson : If it is shown that a prisoner is of unsound mind, all 
proceedings can be stayed at any time. 

Harding J. : Well, then, he goes to prison for ever ? 

Wilson : No, he is confined during the Queen's pleasure. 

Mansfield then tendered the depositions, and the plea of guilty 
entered in the Police Court. 

Wilson : The difficulty in this matter arises out of the fact 
that such cases are not provided for in the new Act. If at any 
time it comes to the cognizance of the Court that the prisoner is 
insane, aU. proceedings must be stayed. 

Harding J. : It will be for the jury to say whether he was 
insane at the PoHce Court, and whether he is insane now. 

Wilson : Such a proceeding is not provided for in The Insanity 
Act of 1884, which repealed the old Act of George III, and it is a 
question now, whether a jury can be summoned to try the question. 
The difficulty arises in this case from the committal of the prisoner 
for sentence. 

Harding J. : There is no difficulty about that. I cause the 
prisoner to be re-arraigned. The man has pleaded guilty, which 
is simple enough, and you assure me that you have evidence of 
the man's insanity. 

Wilson : And I submit that the proceedings must be stayed. 

Harding J. : The proper course wiU be for Mr. Wilson to ask 
for the prisoner's plea to be withdrawn. If I accede to that, I 
will have a jury empanelled to try the question, whether or not 
the prisoner can understand the proceedings and plead to the 
information. This is the course I took at Maryborough, in 
Regina v. Jansen, about 1880, before the new Insanity Act came 
into force, and I do not see how that Act affects what I did on 
that occasion. The only difference is, that the old Insanity Act 
was in force then, and the present Act operates now. The real 



206 QUEENSLAND JUSTICE OF THE PEACE. 

Begina v. Eoche. question is whether the prisoner is in a state of mind to under- 
stand what we are doing. If he is not, we must wait till he is, 
subject to Her Majesty's pleasure. 

Wilson then asked that the prisoner's plea of guilty should he 
withdrawn, and on the concurrence of the Crown, the request was 
acceded to. The prisoner was then remanded till the next day, in 
order to allow the Crown to inquire into his mental condition. 
On the following day the prisoner was arraigned and pleaded not 
guilty. A jury was then empanelled, the following oath (Arch- 
bold, 19th Ed., p. 153) being administered : 

You shall well and truly try whether John Roche, the prisoner 
at the Bar, who stands charged with felony was able, competent, 
and of sufiBcient intellect to understand and comprehend the 
proceedings on the trial when he pleaded to the information 
after referred to, and whether he is now able, competent, and of 
suflBcient intellect to understand and comprehend the proceedings 
on the trial to be now had and taken on the information preferred 
against him for the said felony, and upon which he hath been 
now arraigned and pleaded not guilty, so as to make a proper 
defence thereto. So help you God. 

And the following oath was administered to the witnesses : — 

The evidence which you shall give to the Court and jury upon 
this inquiry, shall be the truth, the whole truth, and nothing but 
the truth. So help you God. 

The usual proclamation as to witnesses, except one medical 
witness on each side, was then made. 

Haeding J. then called on Wilson to begin. 

Wilson : I have no objection to begin, but there is a different 
practice that was followed in Eegina v. Dames (3 C. & Kir., 329). 

Habding J. : That case has not been followed. 1 Russell on 
Crimes, 135-6 ; Eegina v. Turton (6 Cox C.C, 385). A man is 
presumed to be sane until the contrary is proved, and the burden 
of proof falls on the prisoner now, though it may shift as the case 
goes on. 

Wilson, in opening, referred to 1 Russell on Crimes 114 ; Begina 
V. Oxford, 9 C. & P., 546 ; and as to admissions or statements, 
Eegina v. Pearce, 9 C. & P. 670. Medical and other evidence 
was then called, and counsel addressed the jury. 

The jury found that the prisoner was able to comprehend the 
proceedings on the trial when he pleaded to the information, and 
(2) that he was now capable of understanding the proceedings. 



CRIMINAL REPORTS, 1860—1907. 207 

Mansfield thereupon applied that the plea; of not guilty be Begina v. Boche. 
struck out, and the plea of guilty entered. 
Harding J. : Be it so. 
Mansfield prays judgment. 

Wilson did not desire to press the question of aanity any further, 
but asked for mercy on the ground of previous good character. 
The prisoner . was then sentenced. 

SoUcitors for prisoner : Chambers, Bruce, and McNab. 
Solicitor for Crown : J. Howard Gill. 



[Full Court.] 
REG. V. RODY HOGAN. 



[3 Q.L.J. 143.— Note.— See R. v. Kuruwaru, 10 Q.L.J. 139, post ; R. v. Corbett, 
1903 S.R.Q. 246, post ; R. v. Warton, 1905 S.R.Q. 167, post. As to improper 
admission of evidence for defence, see now s. 671 of Criminal Code.] 

Dying declaration — Authenticity of, without declarant's signature — 1889. 

Absence of prisoner while declaration was being made. June. 

A dying declaration is admissible if its terms can be proved by a witness who 
was present when it was made, and such declaration does not require to be signed 
or authenticated in any other way. 

Special Case stated by Mr. Justice Cooper : — 

Judge's Chambers, 

Supreme Court, Bowen, 

May 23rd, 1889. 
Reg. v. Rody Hogan. 

The above-named prisoner was tried before me at Towns- 
ville, on the 2nd and 3rd of May instant, on the charge of having 
murdered a man named William GuUfoyle. A material part of 
the evidence against Hogan, was Guilfoyle's dying declaration, 
which had been taken down in writing by Mr. ZiMman, the Police 
Magistrate of Herberton. It began with the words, " I, William 
Guilfoyle, believing that I am in danger of impending death, and 
that I have no hope of recovery, do solemnly and sincerely 
declare," and proceeded to relate the circumstances of the crime. 
At the end were inscribed these words and figures, " Declared 
before me this fourth day of November, 1888, at Herberton, A. H. 
Zillman, Police Magistrate." The document was not signed or 
otherwise marked in any way by the declarant. 

William David Bowkett, a duly qualified medical practitioner 
of Herberton, was examined, and in the course of his evidence 



208 QUEENSLAND JUSTICE OF THE PEACE. 

Beg. !■. EoDTT said, " I was present on the 4th November, when GuiKoyle made 
^^^- a dying declaration. Mr. Zillman, Police Magistrate, and Mr. 

Ringrose, barrister, were there at the time, and, for a portion of the 
time. Constable Lanigan and prisoner. The declaration was taken 
down in writing. It was read over to Guilfoyle. While Guilfoyle 
was making his declaration the prisoner was brought into Guil- 
foyle's presence, and Guilfoyle was asked whether that was the 
man, or whether that was Rody Hogan (I can't remember which), 
and he said, ' Yes.' GuiKoyle was suffering a good deal of pain. 
His mind was clear." The witness then looked at a document and 
said, " This is the declarationi" 

Mr. Macnaughton, of the bar, who defended the prisoner, 
objected to its reception, on the ground that the prisoner was not 
present all the time. 

I overruled the objection. 

The witness continued, " I had no hope of Guilfoyle's recovery 
and I told him so." 

The document was then tendered ; no further objection was 
taken ; it was admitted and read. No further evidence was 
given upon the point under consideration. 

After the jury had retired, Mr. Macnaughton asked me to 
reserve a case for the consideration of the Pull Court, on the 
ground that the declaration made by Guilfoyle, was not signed 
or authenticated on the face of it by him, and was consequently 
not receivable in evidence, and ought not to have been left to the 
jury. He cited Begina v. Gibson, 18 Q.B.D., 537. 

The jury convicted the prisoner, and I passed sentence of 
death upon him. I respited the execution of the sentence until 
after the decision of the Full Court upon the point reserved 
should be known. 

Pope A. Coopek. 

Power, for the Crown, submitted that the objection should be 
overruled. This case was similar to King v. Reason cfc Nantes, 
1 Str., 499. 

Lilley C.J. LiLLEY C.J. : I see now why Reg. v. Gibson is mentioned here. 

Under that case, now, the prisoner's counsel may wish to have 
certain evidence in for the sake of his client, and afterwards should 
it turn out to be inimical, the Judge would have to reject it, 
because it should not have been admitted. I very much regret 
that that decision has been given. We are bound by it ; and under 
it we must now treat this matter, as if counsel had been present 
and had objected. A prisoner now only needs the luck to get a 
bit of evidence in, that the Judge should not have allowed in 
against him, even if ehcited by his own counsel, and he is as if it 
had been objected to by counsel and put to the jury. 

The document here was not a deposition ; we can only treat 
it as a dying declaration. It had to be proved by someone who 



CRIMINAL EEPORTS, 1860—1907. 209 

heard it taken. Here the doctor does that. There is nothing ^Hooan°"^ 

in the point that the prisoner was not present ; nor in the point 

that it was not signed by the declarant. The terms of the declara- i ey . . 

tion are clearly proved by the witness, who says he was present. 

There is nothing here, as far as I can see, that might not have 

been admitted. As the terms of the declaration were proved by a 

witness present when it was made, I think it was clearly admissible, 

and need not have been signed, or authenticated in any other 

way. The man may not have been in such a condition as to have 

borne to have his deposition taken. These things are usually 

done in a hurry. Had it been possible, the prisoner being there, 

it would have been better to have taken a deposition. The 

conviction must be affirmed. 

Solicitor for Crown : Gill, Crown Solicitor, for Petrie, Crown 
Solicitor, Bowen. 



[Full Court.] 
BERNECKER v. WHITE. 



[4 Q.L.J. 1.— Note.— Brands Act of 1872, s. 27, is repealed, see now s. 447 ol Criminal 
Code. Brands Act Amendment Act of 1884, s. 2, Is repealed, see now s. 449 
of Criminal Code.] 

Brands Act of 1872, s. 27, and Brands Act Amendment Act of 1890. 

1884, s. 2 — Limitation of time for information after discovery March. 

of offence — Costs to the Crown. LilUy G.J. 

Mein J. 
B. was convicted under the above statutes of illegally branding a cow, upon 

an information laid by the Inspector of Brands, more than a month after the 

discovery of the branding by the owner W., but within a month of the time when 

W. informed the inspector thereof. 

Held, that the limitation of time in s. 2 of BruTids Act Amendment Act of 1884 
relates to the discovery of the offence by the person laying the information, and 
not to any person who may first make the discovery, and neglect to lay an infor- 
mation. 

The Crown, having appeared and succeeded on behalf of the Inspector for 
Brands, are entitled to coats. 

Bebneckeb had been convicted under the Brands Act of 1872, 
s. 27, of illegally branding a cow, the property of White, by 
putting his own unregistered brand on it. The alleged illegal 
branding was said to have been in June, 1889. White informed 



210 QUEENSLAND JUSTICE OF THE PEACE. 

Berneckee !'. Ferry, the Inspector of Brands, and prosecuted on the 2nd 

' December, 1889, and Ferry, after inspection of the cow, laid an 

information on 13th December, 1889. White had heard, about 
six months before 2nd December, 1889, that his cow bore defend- 
ant's brand. 

Rutledge, for the defendant, appealed and obtained, before 
Mein J., at Chambers, a rule nisi for a quashing order against 
White and the convicting justices, on the ground that the breach 
of the provision of s. 27 of the Brands Act of 1872, complained of, 
was discovered more than one month before the information was 
laid ; the rule asked for costs against White. 

Rutledge and Lilley now appeared for the appellant, and moved 
the rule absolute on the same ground. White was the person 
who should have laid the information. White put the law in 
motion, and got the Inspector to lay the information. White 
had made a discovery of the breach of the law six months before. 
Referred to Metropolis Local Management Amendment Act, 
25, 26 Vic, c. 102, s. 107, as an analogous Act ; and to Brutton v. 
St. George's Vestry, 13 Eq., 339. 

Lilley C.J. : Can there be any reasonable doubt about the 
language of the section ; discovery is when a man has reasonable 
ground to beHeve that an offence has been committed. Here 
it is the discovery by the person who prosecutes, that is meant. 

Real : The discovery by the - Inspector was on the day that 
White informed him ; he went and inspected the beast, and within 
a month laid the information. The rule should be discharged. 

Lilley C.J. LiLLBY C.J. : This was a prosecution by the Inspector of Brands, 

— a public officer charged with the administration of the Brands 
Act, which is an Act of public policy, and for the protection of" 
the public. One object of the statute is to prevent the commission 
of felonies, and other offences against persons owning stock. 
There was a public officer prosecuting, — Mr. Ferry — on the 
information given him by Mr. White, who alleged that his cow 
— or calf at the time probably, when the brand was put on — 
had been wilfully branded by the defendant, Bernecker. Our 
judgment must rest upon the interpretation which we put upon 
the Brands Act Amendment Act of 1884. The prosecution origin- 
ated under the 27th section of the principal Act of 1872, which 
provides that, — 

"if any person wilfully brand any stock of which he is not the 
rightful owner, or shall wilfully cause, direct, or permit any stock 



CEIMINAL REPORTS, 1860-1907. 211 

of which he is not the owner, to be branded with his brand, such BiinNECKER v. 
person shall on conviction for every such offence in a summary ^hite. 

way, forfeit, and pay any sum not exceeding fifty pounds." Lilley C.J. 

Well, as I have said, our judgment must rest on the interpreta- 
tion which we put on the 2nd section of the Amending Act. 
Originally the information for a breach of this statute must be 
laid within six months of the commission of the offence. For some 
reason or other the Legislature saw fit to alter the law, and they 
enacted in this 2nd section of the Amending Act, that — 

"on information for a breach of any of the provisions of the 27th 
and 28th sections of the said Act, may be laid and prosecuted 
in a summary way at any time within one month from the dis- 
covery of such breach, anything in any law or statute to the 
contrary notwithstanding." 

Now, our interpretation is that discovery is made under this 
section when the person who prosecutes has reasonable ground 
for beUeving that an offence has been committed. The person 
who prosecuted here was the Inspector of Brands, a public officer 
prosecuting for a public offence, who laid the information within 
one month of the time when he made the discovery, within the 
m^eaning of the statute, as we interpret it. It was not until 
White, the owner, informed him — Ferry — that Bernecker had 
branded his cow, that he can be said to have had reasonable 
ground for believing that an offence had been committed. Prob- 
ably it might be extended to the time when he went to satisfy 
himself, by inspection of the animal, that the double brands 
were on it — first. White, the owner's brand, and then, on the 
same side, Bernecker's brand. That being so, he laid his infor- 
mation within the time limited by the statute. First, then, 
discovery means when the person prosecuting has reasonable 
grounds for beheving that an offence has been committed, and 
second, the limitation is against that person and not against the 
actual owner. Any other interpretation would lead to this :-— 
fifty different persons may have discovered this and not prosecuted, 
if they chose to wink at it and not do their duty. We would then 
have to go back to the person who first discovered the offence, 
and a man might go without punishment. The old limitation 
is gone, and this goes back to the old rule of law with respect to 
larcenies, that the ofience is not purged until the offender is 
convicted or acquitted, unless he can show that the person who 
laid the information discovered the offence more than a month 
before. That being so, the rule must be discharged. 



212 QUEENSLAND JUSTICE OF THE PEACE. 

^"^ Whit^ " ^^^^ J- concurred. 



Mein J. 



Reed asked for costs. The Crown had appeared in the interests 
of the public and succeeded, and was therefore entitled to costs, 

Rutledge : Costs were asked by appellant against White. 
This was a case of first impression and of pubUc importance. 
The Crown ought not to get costs. 

1 ey C.J. LiLLEY C.J. : My brother Mein has a strong impression that the 

Crown should not have costs. I am inclined to disagree with 
him. This is a public officer, and the Crown comes here to defend 
his act. I think it ought to go with costs. Rule discharged with 
costs. 

Sohcitors for appellant : Ruthning <fc Byram. 
Solicitor for respondent : Gill, Crown Solicitor. 



1891. 
June, 



[Full Court.] 
REGINA V. LUM HOOK. 

[4 Q.L.J. 63.— Note.— 29 Vic, No. 13, ss. 48, 49 ; 38 Vic, No. 3, s. 7 ; and 53 
Vic, No. 17, ss. 4, 11, 17, have been repealed ; 40 Vic, No. 2, s. 2, is 
repealed, see now s. 669 of Criminal Code. 

Crown Case Reserved — Jurisdiction — Northern Supreme Court — 
29 Vic, No. 13, ss. 48-49—38 Vic, No. 3, s. 7—53 Vic, 
No. 17, ss. 4, 11, 17 — 40 Vic, No. 2, s. 2 — Perjury — Judicial 
proceeding — Small Debts Act (31 Vic, No. 29) — Non-amend- 
ment of proceedings. 

The Full Court sitting at Brisbane, is the proper tribunal for a Crown Case 
Reserved by a Judge of the Northern Suprerae Court. 

Section 2 of 40 Vic., No. 2 [Criminal Practice Amendment Act of 1876), is not 
impliedly repealed by The Supreme Court Act of 1889. 

An action had been commenced in the Small Debts Court at Cairns, against 
Lum Hook and Chong Chow, trading together in partnership, for goods sold and 
delivered. The plaintiff abandoned the case against Chong Chow, and without 
amending the proceedings in any way, evidence was taken for the defendant, 
who in the course of his evidence, committed the alleged perjury. Judgment was 
given for the plaintiff against Lum Hook alone. 

Held, that this was a judicial proceeding, and it was competent for the Court 
to proceed in the action after the abandonment against one defendant, and that 
the conviction for perjury should be sustained. 

Case Rbseeved by Chubb J. : 



CEIMINAL EEPOETS, 1860-1907. 213 

1. The defendant Lum Hook was tried before me at the Circuit Beoina v. 
Court Cairns on the second day of April 1891 on an information Lp m Ho ok. 
for perjury. 

2. The perjury was charged in the information to have been 
committed in the Court of Petty Sessions Cairns in its Small 
Debts Jurisdiction on the trial of an action in which one Long 
Lee was plaintiff and the defendant and one Chong Chow were 
defendants. 

3. The following evidence was adduced by the Crown : The 
plaint summons and particulars of demand in the action were 
for £27 19s. 9d. for goods sold and delivered by plaintiff to Lum 
Hook and Chong Chow trading " together in partnership." — On 
the hearing after the plaintiff had given his evidence and before 
the alleged perjury was committed the plaintiff abandoned the 
case against Chong Chow whereupon and without having amended 
the proceedings in any way the Court proceeded to take evidence 
for the defendant. The defendant gave evidence and in the 
course of it made the statements upon which the perjury was 
assigned and judgment was given for the plaintiff against the 
defendant alone for the amount sued for. 

4. Upon this evidence I reserved for the consideration of this 
Honorable Court two questions viz. : — 

(a) AVhether after the plaintiff had abandoned the case 

against Chong Chow the action was as regarded the 
defendant a judicial proceeding. 

(b) Whether after such abandonment it was competent for 

the Court to proceed further in the action against the 
defendant alone. 

5. I refer the Court to sections 15, 19, 21, 29, and 30 of The 
/Small Debts Act of 1867 which induced me to reserve the questions. 

6. The jury found a verdict of guilty and I postponed judgment 
until the questions reserved had been decided and accordingly 
committed the defendant to the prison at Townsville where he 
now is. 

7. I am in doubt whether the second section of The Criminal 
Practice Act Amendment Act of 1876 has not been repealed by 
implication by The Supreme Court Act of 1889. As this is the first 
case reserved by a Northern Judge since the passing of the lattt r 
Act I have reserved it for the Court at Brisbane in order that the 
point may be considered. I request the decision of the Court 
upon the questions reserved. 

C. E. Chubb, J., 
Chambers, Supreme Court, Northern Judge. 

Townsville, 29th April, 1891. 

Byrnes, S.G., Scott with him, for the Crown. 
There was no appearance for the defendant. 

Byrnes : The question of jurisdiction is raised in this case, 
whether a Crown Case Reserved by a Northern Judge should be 
heard at Brisbane as heretofore, or at Townsville. The Supreme 



214 QUEENSLAND JUSTICE OF THE PEACE. 

Kegixa v. Court Act of 1889 expressly repeals The Supreme Court Act of 1874, 

^" ^' ss. 15-21 inclusive, and the Act to amend The Supreme Court Act 

of 1874 (41 Vic, No. 17), but no mention is made of The Criminal 

Practice Amendment Act of 1876. By s. 2 of that Act, a Crown 

Case Reserved by a Northern Judge, shall be heard by the 

Supreme Court sitting at Brisbane. The practice is regulated by 

ss. 48 and 49 of The Criminal Practice Act of 1865, which require 

the case to be transmitted to the Judges of the Supreme Court. 

By s. 7 of The Swpreme Court Act of 1874, the Supreme Court is to 

be holden before three Judges, except under certain circumstances. 

By s. 17 of The Supreme Court Act of 1889, the word Townsville 

is to be substituted for Brisbane. But this is only a quaUfied 

provision. On the ground of convenience, there can be no doubt 

the cases should be heard in Brisbane, otherwise there might 

be a dijfference of opinion between the two Judges, and a divergent 

criminal practice exist in two parts of the colony. There is no 

provision for an appeal from TownsviUe to Brisbane in criminal 

matters. [Harding J. : There is no appeal in a Crown Case 

Reserved.] Section 11 of the same Act excepts jurisdiction on 

appeal from a decision of a Judge of the Supreme Court, and s. 4, 

excepts any appellate jurisdiction vested in the Full Court at 

Brisbane. 

The Chief Justice : That decides the question. Section 2 
of The Criminal Practice Act of 1876 is not repealed. The appellate 
jurisdiction in criminal cases rests with this Court alone. 

Byrnes : As to the merits, the difficulty of the Judge seems 
to have been whether there was a judicial proceeding, as the 
proceedings had not been amended. [Habding J. : The question 
is simply — Can an action proceed against one defendant when a 
non-suit is granted to another ?] The defendants were in partner- 
ship. [The Chief Justice : That makes no difference.] The 
points reserved are within the words of Denman J., in Reg. v. 
Hughes, 4 Q.B.D. 614, at 637 — " I am of opinion, however, 
that we ought not to have regard to the conviction, in considering 
whether perjury was committed, but to look to the moment at 
which the false evidence was-given, and consider whether at that 
moment the Magistrates had jurisdiction to hear that evidence 
judicially. And I think that they had jurisdiction to hear that 
evidence judicially, if, at the time at which it was given, it was 
evidence which in any possible event, they might have acted 
upon judicially in a matter within their jurisdiction ; whether the 
result of their acting upon it might have been to convict, or to 



CEIMINAL REPOKTS, 1860-1907. 215 

acquit, or to adjourn, or to send for trial, or to take bail, or to do EaaiNA '• 
. •■ ' ' LuM Hook. 
any other judicial act within their competency." 

The Chief Justice : We think this was a judicial proceeding, The Chief Justice 
and if the false evidence given was material, that there was perjury. 
We answer question A, yes ; and question B, yes. The conviction 
is sustained. Let the Judge give judgment. 

Sohcitor for the Crown : J. Howard Gill. 



[Brisbane Criminal Sittings.] 
REGINA V. JOHNSON. 



[4 Q.L.J. 130.— Note.— Sec. 207 of Insolvency Act (38 Vie., No. 5) is repealed, see 
now s. 519 of Criminal Code.] 

Criminal law — Insolvency Act (38 Vic, No. 5), ss. 31, 207) — 1891. 

Married woman — Separate property — Married Women's Pro- ^Oth November. 
perty Act (54 Vic, No. 9), s. 3, sub. 5. Harding J. 

A married woman having separate property is liable to be convicted for an 
offence under The Insolvency Act of 1874. 

Information against Catharine Mary Agnes Johnson, for 
feloniously quitting the colony within four months before the 
presentation of a petition for adjudication, and taking with her 
property to the amount of £50 and upwards, being a married 
woman with separate estate. 

Power and Mansfield, for the Crown. Gore Jones for the 
prisoner. 

Harding J. raised the preliminary question as to the liability 
of a married woman under The Insolvency Act. 

Mansfield : The information is laid under s. 207 of The Insol- 
vency Act. By s. 31 of that Act the provisions of the insolvency 
laws apply to all debtors resident in the colony. By the Married 
Women's Property Act of 1890, s. 3, sub. 5, every married woman 
shall, in respect of her separate property, be subject to the 
insolvency laws in the same way as if she was unmarried. The 
prisoner had separate property. Eversley on Domestic Relations, 
292 ; Williams' Bankruptcy Practice, 315, 316 ; Duffy and Irvine, 
Married Women's Property Law, 149, 151 ; Re Gardiner, 20 
Q.B.D. 249 ; Holtby v. Hodgson, 24 Q.B.D. 103 ; Scott v. Morley, 
20 Q.B.D. 121. 



216 



QUEENSLAND JUSTICE OF THE PEACE. 



Regina I). 
Johnson. 

Harding J. 



Habding J. directed the jury, who found the prisoner guilty, 
with a recommendation to mercy on the ground that the prisoner 
was not altogether a free agent in the matter. It was also 
suggested by a juror that a married woman was supposed to- 
obey her husband. 

Habding J. : That presumption does not apply in cases of this 
sort. These women have fought for their rights. Now they 
have got them and must suffer Uke men. It is just as well for 
women to know that, having demanded and obtained the rights 
of men, they are subject to the same penalties in the event of 
their transgressing the law. A year ago an offence of this nature 
was not a crime under the law, but the Legislature had now placed 
women in the same position as men, and they have to suffer 
accordingly. 

Prisoner sentenced. 

Solicitors for prisoner : Chambers, Bruce and McNah. 



1892. 
24th February. 

Chubb J. 



[NoBTHERN Supreme Court, Townsvillb.] 

HENDERSON, APPELLANT, v. MACDONALD, P.M., AND 
McKIERNAN, RESPONDENTS. 

[4 Q.L.J. 133.— Note.— Sees. 181 and 182 of the Justices Act (50 Vic, No. 17) are 
repealed, see now ss. 443, 444 of Criminal Code. Sec. 102 ot Larceny Act 
is repealed, see now s. 443 (1) ot Criminal Code.] 

Justices Act (50 Vic, No. 17), ss. 181, 182Summary jurisdiction- 
Receiving stolen goods — Larceny Act of 1865, ss. 4, 96, 102. 

In cases of receiving stolen property, the summary jurisdiction of justices ia 
restricted to the specific cases covered by s. 102 of The Larceny Acl. 
A summary conviction for receiving stolen shutters quashed. 

This was a motion under s. 209 of The Justices Act of 1886, to 
quash a conviction. 

Jameson, for the appellant, moved the rule absolute. 

Ross, for the respondent, J. G. Macdonald, P.M., showed cause. 

McKiernan, the other respondent, showed cause against costs 

only. 

The facts of the case were that on the 19th of January last two 
wooden shutters, the property of McKiernan, were found by a 
pohce constable, armed with a search warrant, upon the verandah 



CRIMINAL REPORTS, 1860—1907. 



217 



of the appellant's dwelling. Appellant told the constable that 
he did not claim them, or know whose they were, that they were 
brought there by his son the afternoon before, while he was 
from home, and that on his return he saw them there. The 
shutters were last seen upon McKiernan's shop on the 16th, and 
were missed on the 18th January. The appellant's son, called 
for the defence, corroborated his father's statement and said 
that he found the shutters upon the bank of a creek about one 
hundred yards from the shop. Appellant's wife swore to the 
son bringing the shutters home. The appellant was charged 
with larceny and, electing to be tried summarily, was coni^icted 
of receiving the shutters and fined. 

Chubb J. : The appellant was tried summarily by the Pohce 
Magistrate at Townsville under ss. 181 and 182 of The Justices 
Act of 1886, for the larceny of two wooden shutters, under the 
value of 40s., the property of McKiernan, and was convicted by 
the Justice of feloniously receiving them knowing them to have 
been solen. The rule granted by me to show cause why the 
conviction should not be quashed contains two grounds, viz. : 
(1) No evidence to support the conviction ; (2) That this offence 
is not punishable on summary conviction. On the first ground 
I am against the appellant. The Justice was evidently not 
satisfied with the account given by him as to how he became 
possessed of the property, consequently the presumptive evidence 
of guUt arising from the recent possession of stolen property was 
not rebutted, and there was, therefore, some evidence, though 
sHght, upon which he could convict. I do not think that upon 
that evidence I should have come to the same conclusion, but 
I cannot go so far as to say that the Justice was wrong. It ia 
not enough to say that the evidence was weak or conflicting, 
or that this Court might have come to a different conclusion — 
the rule is that, as the Justices are the judges of the facts, their 
finding will not be reversed unless it clearly appears that they are 
wrong, or, to put it in other words, that there was no reasonable 
evidence to support the conviction. It cannot, therefore, be 
disturbed on this ground. On the second ground a question of 
the construction of the Statute is involved. The question is 
whether the offence of receiving stolen shutters can be dealt with 
summarily by Justices. Having regard to the provisions of 
of ss. 181 and 182, and to the offences there enumerated, one 
would, I think, expect to find the cognate offence of receiving 
stolen property amongst them, but a careful reading of them does 



Hendebson, 

Appellant, v. 

Maodonald, 

P.M., AND 

Eebposdents. 



Chubb J. 



218 



QUEENSLAND JUSTICE OF THE PEACE. 



Hendebson, 

Appellant, v. 

Macdonald, 

P.M., AND 
McElEBNAN, 

Eespondents. 
Chubb J. 



not disclose any express mention of that offence. If, therefore, it 
is covered by the sections, it must, I think, be found, if anjrwhere, 
imphed in sub-section 2 of 8. 181 as an offence " declared to be 
punishable as simple larceny." Now the offence of simple larceny 
is, by s. 4 of The Larceny Act of 1865, punishable at the discretion 
of the Court by penal servitude for three years or imprisonment 
not exceeding two years with or without hard labour, &c., whereaf 
the punishment for the offence of receiving is, by s. 96 of the 
same Act, to be at the like discretion penal servitude for any 
term not less than three or more than fourteen years, or similar 
imprisonment, &c., as in simple larceny. Here, therefore, it is 
patent, without more, that receiving is not " punishable as 
simple larceny," which words I understand to mean " liable 
to the same punishment." The counsel for the respondent, 
however, relies upon s. 102 of the Act, which provides that where 
the stealing of property is by this Act (Larceny Act) punishable 
on summary conviction, the receiver of such property, knowing 
the same to be unlawfully come by (this expression is peculiar) 
shall be liable, on summary conviction before Justices, to the same 
punishment as the thief would be. Counsel for the respondent 
has failed to point out, and I have been unable to discover for 
myself, that the stealing of shutters is by this Act made punishable 
on summary conviction before Justices ; if this is so, therefore 
the offence of receiving shutters cannot by virtue of s. 102 be 
so punishable. There is a number of things specially named 
in the Act, the stealing of which is made punishable "as in the 
case of simple larceny," to which the provisions of s. 102 apply, 
but shutters are not included in them — see for example ss. 26, 
32, 33, 36. 37. Then (apart altogether from The Justices Act) is, 
there any other statute which makes the steahng and receiving of 
shutters punishable on summary conviction ? I cannot find any, 
and the research of counsel has produced none. It appears 
to me, therefore, that the offence of receiving in this case is not 
within the summary jurisdiction of justices, and that the Police 
Magistrate was wrong in so dealing with it. The result is curious, 
because if he had convicted the appellant of stealing the shutters, 
the conviction would have been good under The Justices Act. In 
cases of receiving stolen property, the summary jurisdiction of 
justices is, therefore, in my opinion, restricted to the specific cases 
covered by s. 102 of The Larceny Act, consequently this conviction 
must be set aside, but under the circumstances, without costs. It 
may be, and probably is, a casus omissus on the part of the 



CRIMINAL EEPORTS, 1860—1907. 



219 



draftsman, as the addition of the words, "or the offence of 
receiving stolen property the stealing of which would be simple 
larceny," at the end of subsec. 2 of s. 181, would have covered 
the point. A consequential amendment would, of course, be 
necessary in s. 182. Order absolute to quash the conviction 
without costs. 

Solicitor for appellant : E. J. Forrest. 

Solicitor for respondent P.M. : C. Selwyn Smith, Northern 
Crown Solicitor. 



Henderson, 

Appellant, v. 

Maodonald, 

P.M , AND 

McKlEKNAN, 

llESPOXDENTS. 

Chubb J. 



[Pull Court.] 
BILBY V. HARTLEY AND OTHERS. 



[4 Q.L.J. 137.— Note. 



-6 Geo. IV., c. 129, s. 3, is repealed, see now s. 534 ot Criminal 
Code.] 

Criminal law — Intimidation — 6 Geo. IV., c. 129, s. 3 — Effect of 
9 Geo. IV., c. 83 — Excessive fine — Amendment — Justices Act 
(50 Vic, No. 17), ss. 173, 174, 214, 223, 225. 

B. was convicted on a charge of intimidation under 6 Geo. IV., c. 129, s. 3. 
Certain shearers, besides B., were endeavouring to raise subscriptions for the 
defence of some fellow labourers then committed to trial. B. and another shearer 
asked some free labourers to subscribe to the fund. They refused to do so. B. 
then said " If you come here to dinner I'll chuck you out," and made use of very 
foul language. The free labourers were also told if they came in to tea they would 
be very roughly handled. They considered their lives in danger, and complained 
to the manager of the station. The justices fined B £10 and £25 123. 8d. for costs, 
in all £35 12s. 8d., or in default three months' imprisonment with hard labour. 

Held, that the language used amounted to intimidation ; that the fine was 
excessive under s. 173 of The Justices Act, inasmuch as the defendant would be 
liable to imprisonment for six months under s. 174 of that Act, while the greatest 
term of imprisonment under 6 Geo. IV., c. 129, was three months, and that the 
fine must be reduced to £4 19s. llfd., and the conviction be upheld. 

6 Geo. IV., u. 129, is applicable to Queensland. The effect of 9 Geo. IV., c. 83, 
discussed. 

Motion for a rule absolute quashing the conviction of Frederick 
Bilby, a shearer, before Messrs. W. J. Hartley, P.M., and P. J. 
Phillips, J.P., at Blackall, 22nd of September last, on a charge of 
intimidation, on the grounds that the justices had no power or 
authority (1) to impose or order payment of a fine ; (2) to impose 
or order payment of a fine with alternative imprisonment ; (3) to 



1892. 

February. 



220 QUEENSLAND JUSTICE OF THE PEACE. 

■^Tro Omers'!''' °^^^^ *^® payment of the sum of 7s. 8d. for costs ; (4) to order the 

payment of the sum of £15 15s. cost of witnesses' travelling 

expenses ; (5) to order payment of the fine of £10 10s. ; (6) to 
impose the penalty and imprisonment ordered ; (7) that the 
statute 6 Geo. IV., c. 129, is not in force in the colony of Queens- 
land ; (8) that there was no evidence before the justices of 
intimidation under the lastmentioned statute. 

Lilley, and Conlan, to move absolute the order nisi ; Sir S. W. 
Griffith, Q.C., A.G., Byrnes, S.G., and W. A, D. Bell, for the Crown. 

Lilley : The facts of the case are these : Prior to September, 9th 
1890, certain persons were committed for trial at Rockhampton for 
cutting Ebor Creek Bridge. The shearers in the western parts of 
the colony, of whom Bilby was one, were raising subscriptions 
for the defence of the prisoners, and to get them witnesses and 
food during the time they awaited trial. This was being done at 
Terrick station, near Blackall, where Bilby was working. On the 
morning of September 9th he and Turbot asked certain free 
labourers at the breakfast table to subscribe. The evidence at the 
prosecution was as follows : Turbot said, " Do any of you fellows 
refuse to pay 6s. lOd. towards defraying the rations fund of the 
shearers awaiting trial at Rockhampton over the Ebor Creek 
affair." AUis said, " I refuse to pay," and so did Oakden and 
Riding. Turbot then went to his mates amongst the unionists, 
who refused to eat at the same table as the free labourers, and said, 
" Here's these men refuse to subscribe. I'll make one to chuck 
them out." Bilby went over to the three and said, " Do you 
refuse ? All the rest have paid." Allis replied, " I refuse." 
Bilby said, " Then don't come here to dinner ; if you do I'll 
chuck you out." At midday they all went to their dinner as 
usual, when Turbot produced a number of lists for the men to sign 
for the expenses of the witnesses. Turbot asked Allis to sign, 
and he refused. Turbot again said to his mates, " Here are three 
men who won't sign, I'll make one to chuck them out." Bilby said 
to AUis and Oakden, " If you come to tea you will be chucked 
out," and Turbot added, " I'll make one to chuck them out as fast 
as they come in." At tea time the three went for their tea, 
and found nothing had been left for them. Turbot said, " If any 

of you come in you will be handled." Allis accordingly 

considered his life was in danger. He went over to Sutherland, 
the overseer, and had his tea with him. The next day AUis 
spoke to the manager, and he advised him to seek the protection 
of the law. The overseer also spoke to Bilby, who refused " to 



CRIMINAL EEPOETS, 1860—1907. 221 

cook for the scabs." Allis subsequently laid an information ^"''^'^ «. Hartlett 

against Bilby under s. 3 or 6 Geo. IV., c. 129. That section 

provided that every person who by violence, threats, or other 
means, intimidated another, should, on conviction, be sentenced 
to imprisonment, or be imprisoned for any time not exceeding 
three months, with hard labour. Under s. 173 of The Justices 
Act, power was given to a magistrate to substitute a fine for 
imprisonment, to any amount not exceeding £25, provided the 
amount should not be such as would subject the offender, in 
default of the penalty, to any greater term of imprisonment 
than that to which he was Uable under the Act authorising his 
imprisonment. In this case the period of imprisonment fixed 
by the section of the Act of George IV. was three months. The 
Justices, however, fined Bilby £10 and £25 12s. 8d. costs, or in all 
£35 12s. 8d., or in default three months' imprisonment with hard 
labour. Among the costs they included the expenses of Bilby's 
commitment (in the event of his not paying the fine), and of his 
conveyance from Blackall to the Rockhampton Gaol. Under 
s. 174 of The Justices Act they had no power to inflict a fine of 
more than £5, because if they had imposed a greater fine they 
would have subjected the offender to a term of imprisonment 
exceeding the three months which he was liable to under the 
Act of George IV. [Harding J. : They only gave him three 
months.] That was so ; but they made him run the risk of 
getting six months, because by imposing a fine of more than £5, 
they laid him open to imprisonment for six months. They also 
ordered him, in default, to pay the costs of his commitment and 
conveyance to Rockhampton Gaol. Those costs were an un- 
ascertained amount, and it would have been possible for Bilby's 
gaoler to have kept him in prison for an indefinite time, and to 
have made him pay an indefinite amount. [Real J. : They 
first impose a fine, and if he does not pay they make an order 
for his commitment, but before that is carried out, the amount 
he has to pay has to be specified in the warrant of commitment.] 
I object to all the findings of the justices, and maintain that the 
statute of Geo. IV. did not apply, and that there was no evidence 
under it of intimidation. 

Griffith, Q.G., A.G. : The Solicitor-General and myself are here 
because this case raises matters of great importance. It raises the 
question of whether a statute was in force in the colony which 
was supposed to be in force, and under which persons had been 
deprived of their Uberty. If the statute was not in force, the 



222 QUEENSLAND JUSTICE OF THE PEACE. 

BiLBT i>. Hartley sooner that was made clear the better. Certainly we are not in 
AND Others. . ■ •■ , . 

court to discuss a question of form in connection with this con- 
viction. We are here on behalf of the Crown to assist the court 
to come to a conclusion on the matter, and not on behalf of the 
respondent. [Harding J. : If this conviction is bad in form, 
you may never get to the other question. The Chief Justice : 
I doubt very much whether you could amend the conviction under 
the statute in this case.] The rule raised a question of great 
importance, and we are here to meet it, but now there appears 
to be a technical defect on the face of the conviction. [Hahding 
J. : All the sentences under this Act have expired a long time 
ago, and there cannot be any person suffering under it now.] 

Lilley : The Rockhampton men were not sentenced under 
that Act, but under common law. 

Harding J. : There was a great parade at first of this sort 
of thing, and I looked at Geo. IV., but I did not use it in any 
shape or form. I always carefully avoid anything which may 
possibly burn my fingers. 

The Chief Justice : If it turns out that Geo. IV. is touched 
upon by anyone, if necessary we will decide it ; but we may never 
get to it. 

The Attorney-General : On the question of amendment, pro- 
vision was made in ss. 213, 214, and 223 of The Justices Act to 
correct convictions and impose a proper penalty. Section 223 
laid down that " when on a conviction there is some excess which 
may (consistently with the merits of the case) be corrected, the 
conviction shall be amended accordingly, and shall stand good 
for the remainder." The amount which the justices had power to 
impose was not more than £5, and there was some doubt whether 
it must not be less than £5. Under the scale given in s. 174 it 
must be less. [The Chief Justice : We are inclined to think 
that the amount ought to be reduced to £4 19s. llfd. At present 
we relieve of the burden of the question of excess.] I do not 
pretend that there is no excess. [The Chief Justice : No, that 
is clear. The action of the justices would have exposed the man 
to six months' imprisonment instead of three. The fine is a 
most excessive one, and ought to be reduced to £4 19s. llfd.] 
Then the main question is whether the statute is in force in the 
colony. I contend that the statute is in force. It had been 
suggested at one time that it appUed only to the rules of practice 
in the Court. [The Chief Justice : It was suggested by Lord 



CRIMINAL REPORTS, 1860—1907. 223 

Chelmsford, but never seriously argued. It was not even an obiter ^^^^'^ «. Hartley 

dictum.] The administration of justice had gone on since that, 

and all the laws of England relating to property and to criminal 
matters, so far as they could be applied to the conditions of the 
colony, are in force here. Blackstone, in his definition of those 
statutes, said : " That so much of them remained in force as were 
apphcable to the circumstances and conditions of the colony in 
which it was sought to apply them." 6 Geo. IV., c. 129, is a 
statute applying to criminal offences'; 9 Geo. IV., c. 83, which 
repealed many Acts relating to workers, extended such statutes 
as were applicable to the condition and circumstances of the 
colony. [Haeding J. : All the labour laws against labour were 
repealed, but not this one.] My contention is that 6 Geo. IV., 
c. 129, being a law relating to the liberty of the subject, and for 
protection of the subject from violence to his body, and what was 
akin to intimidation in my mind, is one applicable to the con- 
ditions and circumstances of the colony. In the case of Regina v. 
Druitt, 10 Cox C.C. 592, Lord Bramwell said " that there was no 
right in this country under our laws so sacred as the right of 
personal liberty. No right of property or capital, about which 
there had been so much declamation, was so sacred or so carefully 
guarded by the law of this land as that of personal liberty. 
They were quite aware of the pains taken by the common law — 
by the writ, as it was called — of habeas corpus, and supplemented 
by statute, to secure to every man his personal freedom, that he 
should not be put in prison without lawful cause, and that, if he 
was, he should be brought before a competent magistrate within a 
given time, and be set at Uberty or undergo punishment. But 
that liberty was not liberty of the body only. It was also a 
liberty of the mind and will ; and the liberty of a man's mind and 
win to say how he should bestow himself and his means, his 
talents, and his industry, was as much a subject of the law's 
protection as was that of his body. Generally speaking, the way 
in which people had endeavoured to control the operation of the 
minds of men was by putting restraints on their bodies, and, 
therefore, we had not so many instances in which the liberty of 
the mind was vindicated as was that of the body. Still if any 
set of men agreed among themselves to coerce that liberty of 
mind and thought by compulsion and restraint, they would be 
guilty of a criminal offence, namely, that of conspiring against 
the liberty of mind and freedom of will of those towards whom 
they so conducted themselves." And he laid it down as clear 



224 QUEENSLAND JUSTICE OF THE PEACE. 

BiLBTD Hartley ^nd undoubted law " that if two or more persons agreed that they 

AND OtHEBS. 1 • j. j.1. j. tt 

would by such means co-operate together against that hberty 

they would be guilty of an indictable offence." That was the 
common law of the offence which had been re-enacted by 9 Geo. IV. 
c. 83. If any serious argument is to be made that the language 
used is not intimidation, I refer to this ease. The language used 
is stronger than any previously reported. No decent person 
could remain on the station and submit to it. [Real J. : If it 
were applied to me, and, there were a great number there, I should 
provide myself with a pistol. I would rather pay the 6s. lOd. 
than have it applied to me.] Most men would prefer to pay 
6s. lOd. rather than submit to such language. This was a criminal 
offence under 6 Geo. IV., c. 129, and re-enacted as such by 9 Geo. 
IV., c. 83. The former statute was equally applicable to New 
South Wales as to any other place. It was an Act for the liberty 
of the subject, and, therefore, came within the words of the 
statute which brought such laws into force as were applicable 
to the circumstances and conditions of the colony. [The Chief 
Justice : I think the offence comes under the 3rd section of the 
Act, and would affect the mind of any reasonable being.] Under 
that section, it was held in O'Neil v. Longman, 4 B. & S. 376, that 
asking a man whether he intended to remain in a shop after the 
others had gone out on strike, and have his name circulated 
throughout England, was an offence. [The Chief Justice : 
Very likely. In the old days tradesmen had travelling cards 
allowing them to visit town after town until they gradually 
worked their way to London. Such a thing would seriously 
affect them. There is nothing either on the face of the statute 
or in the circumstances of the colony to make 6 Geo. IV. excep- 
tional.] No. It is an Act that applies to all trades for the 
protection of property, and therefore comes within the laws of 
the colony. On the merits the matter entirely fails. 

Byrnes S.G. : If the statute 9 Geo. IV., c. 83, came into force 
in New South Wales, and remained in force in that colony, it 
would of course have come into force here by virtue of The 
Constitution Act, s. 33. In Webb's Imperial Law and Statutes, 
p. 4, a dictum of Blackstone is quoted. " Colonists carry with 
them only so much of the English law as is applicable to their 
own situation and the condition of an infant colony ; such, for 
instance, as the general rules of inheritance, and of protection 
from personal injuries." [Habding J. referred to Yeap Cheah 
Neo V. Ong Cheng Neo, L.R. 6, P.C. 381.] This was a statute 



CEIMINAL EEPOETS, 1860-1907. 225 

designed to protect men from intimidation and violence, and it Bilby «. Hartley 

111- 11- .1 T *''i> Othebs. 
would be introduced into the colony with civilisation. [Haeding 

J. : A considerable portion of criminal laws are statutory, and 

can be applied to the colonies. Those in reference to the king, 

for instance. If there can be special statutes provided for the 

king, why not provide them for individuals ?] That argument 

is unanswerable. 

Lilley, in reply : To decide whether 6 Geo. IV., c. 129, was 
applicable to the colony, we must look at the state of New South 
Wales at the time it was passed. From the Acts quoted I will 
show that the condition of labour in that colony then was entirely 
different to what it was in England. At that time it was not 
competent in New South Wales for employers to engage appren- 
tices until they passed an Act for that purpose. That Act 
happened to come into force only eight days before 9 Geo. IV., 13, 
was passed in England. The English statute was passed to remedy 
the previous laws which were found to be inapplicable to the 
state of affairs then existing amongst tradesmen. [Habding J. : 
Would not the same observations apply to the Magna Charta ?] 
No. Magna Charta protected all England, "without applying 
to any particular class. 6 Geo. IV. was passed to deal with 
labourers only. By its preamble it could be seen it was specially 
intended for local purposes. In 1828 the majority of the work- 
men in New South Wales were convicts. [Haeding J. : Surely 
you don't contend that when New South Wales was made free 
people could only come to the colony subject to convict laws ?] 
Would this Act then relate to a combination amongst criminal 
classes ? [Hakding J. : No. When 9 Geo. IV., 83, was passed, 
it applied to free people.] 9 Geo. IV., No. 9, which was passed in 
New South Wales years after No. 6, was the first Act to deal with 
labourers in the colony. In the preamble it says : " Whereas 
as many Acts are not applicable to New South Wales." That 
shows what the people thought then. [Real J. : 9 Geo. IV. ,9, 
deals with the relations of masters and servants, and not with 
labourers' relations amongst themselves. [The Chief Justice : 
Then that Act would not help us much.] 9 Geo. IV., No. 8, 
provides for employers engaging apprentices in New South Wales. 
If people brought the laws of England with them, what was the 
use of passing this Act ? [Real J. : You can hardly make out 
that the laws do not apply to the colony when the legislature 
states they shall apply.] It has been held that before you can 
say 9 Geo. IV., 83, applies, you must look at the circumstances of 



226 QUEENSLAND JUSTICE OP THE PEACE. 

BiLBT u. Haktley ti^e colony. Otherwise, you cannot say tliat the Act is appHcable. 

That is the ruling in the Penang case of Yea'p Cheah Neo v. 

Ong Cheng Neo, L.R. 6 P.O. 381. I contend that the circum- 
stances of the colony were so entirely different at that time, that 
the old English Act could not apply. The first Masters and 
Servants Act in England was 9 Geo. IV., c. 9. [The Chief 
Justice : The Masters and Servants Act before that was the 
whip.] 9 Geo. IV., c. 83, also dealt with masters and servants, 
and absconders, besides dealing with servants against servants. 
The very necessity of passing an Act like 8 Geo. IV., shows that 
No. 9 did not deal with the colonies. In Whicker v. Hume, 
129, 7 H.L., 124, it was held that the statutes of mortmain did 
not apply to the colony of Grenada, there being no special circum- 
stances therein for such application ; and it was also held that 
9 Geo. IV., c. 83, had not local appUcation, although the subse- 
quent opinions on this point went the other way. Again 
6 Geo. IV., c. 129, prescribed a remedy in certain courts which 
had not similar courts in New South Wales. 

Sir S. W. Griffith : 9 Geo. IV. empowers the colonies to estab- 
lish courts of quarter session. 

Lilley : But that was afterwards. [Sir S. W. Griffith : Courts 
of quarter sessions were authorised to be estabHshed in New 
South Wales by 4 Geo. IV., c. 96. [Real J. : It is quite clear 
that there were courts of quarter session in the colonies before 
6 Geo. IV.] In another case, that of the Attorney-General 
V. Stewart, 2 Merivale 143, mortmain statutes were held to apply 
entirely in England. I contend that 6 Geo. IV., c. 129, was 
specially passed for England, and at the time of 9 Geo. IV., c. 83, 
was never intended to apply, and did not apply to New South 
Wales. That is borne out by the Penang cases, where the Judges 
held that the statutes particular to England did not become part 
of the Penang laws, because the common law had been introduced 
into them. [Haeding J. : To show that 6 Geo. IV., c. 129, 
cannot be applicable to New South Wales, you have got to prove 
that only convicts were working there when the Act was passed. 
There were sailors going to that colony then. How about them ?] 
6 Geo. IV. does not apply in any way to sailors. [The Chief 
Justice : I take it the position is this. 6 Geo. IV., c. 129, was 
passed for the condition of things existing in England at that 
time. The same condition of affairs was not existing when 9 
Geo. IV., e. 83, was passed ; but if the circumstances arose which 
made 9 Geo. IV. applicable in New South Wales, it would be 



CEIMINAL REPORTS, 1860-1907. !i27 

applicable for all time unless repealed.] I contend that 6 Geo. IV. ^'''''* «. Habiley 

^ -■ AND UTHEIta, 

-was passed purely for local circumstances. If those same circum- — 

stances now apply in Queensland, but did not apply at the passing 

of that Act, that Act cannot apply to them. [Harding J. : As 

I said before, the same observation would apply to Magna Charta.] 

If the Chief Justice's proposition is good, the mortmain laws in 

Whicker v. Hume, which were held not to apply to the particular 

circumstances of Grenada, would apply. [The Chief Justice : 

They could not apply here, because there are no monasteries or 

any great establishments eating up the land. That evil went to 

the root of the English Reformation. People, as the people, 

wanted to get hold of the land belonging to the monasteries. 

If general laws were passed in England, and the circumstances of 

the laws afterwards became applicable to the colonies, would not 

9 Geo. IV., c. 83, also become applicable ?] I submit not. 

[The Chief Justice : If I understand you aright, you contend 

that if the circumstances in New South Wales were not applicable 

to 9 Geo. IV., c. 83, when passed, they cannot be applicable now ?] 

No. Several laws in Forsyth's Cases on Constitutional Law 

have been held not applicable to the colonies, amongst them even 

penal Acts. In Astley v. Fisher, 6 C.B., 572, Maule J. held that 

■9 Geo. IV., c. 83, did not import into the colonies all English 

laws. If any laws but those applicable to the colony at the 

time they were passed could be imported into our code, it would 

not be possible to know the law of the land. [The Chief Justice : 

That is the way with all laws. The law does not arise until the 

offence is committed.] Yes ; but you know what the law is. If 

6 Geo. IV., c. 129, can now be revived and sprung upon us at a 

moment's notice, we are living in a very risky state of affairs, 

and the sooner the Court decides the point the better. With 

respect to intimidation, threats were used but they did not 

amount to intimidation. Connor v. Kent, Gibson v. Lawson, 

Gurran v. Treleaven, (1891), 2Q.B. 545. 

Conlan followed. 

The Chief Justice : This is a rule calling upon the justices The Chief Justice 
and Henry AUis, to show cause why an order should not be made 
directing that the conviction or order made by the justices and 
others at Blackall, in a certain complaint, in which one Allis 
was complainant, and Bilby was defendant, should not be quashed 
on the following grounds : — That the justices had no power or 
authority (1) to impose or order payment of a fine ; (2) to impose 
or order payment of a fine with alternative imprisonment ; (3) to 



The Chief Justice 



228 QUEENSLAND JUSTICE OP THE PEACE, 

BiLBY u Hartley order the payment of a sum of 7s. 8d. for costs ; (4) to order the 

AND UTHGBS. 

payment of the sum of £15 158. costs of witnesses travellings 
expenses ; (5) to order payment of the fine of £10 lOs; ; (6) to 
impose the penalty and imprisonment ordered ; (7) that the- 
statute 6 Geo. IV., c. 129, is not in force in the colony of 
Queensland ; (8) that there was no evidence before the justices 
of intimidation under the lastmentioned statute. Well, upon the 
question of the various amounts, there is no doubt that it is 
conceded that the magistrates imposed an excessive fine, which 
might have exposed the defendant Bilby to excessive imprison- 
ment ; because if the statute under which the complaint was- 
undoubtedly laid is in force in the colony, the term of imprisonment 
is limited to three months, whereas the fine imposed by the 
magistrates, if unpaid, would have subjected Bilby to six months'^ 
imprisonment ; as it was, the Magistrates kept the term of 
imprisonment within the term imposed by the statute 6 Geo. IV., 
but there was undoubtedly an excess in the amount of the fine 
imposed. That being conceded, an application was made by the 
Attorney- General, under The Justices Act, for leave to reduce the 
excess so as to bring it within such an amount as would leave a. 
possible or alternative punishment of only three months, and 
so, in fact, impose the magistrates' imposition of only three 
months' imprisonment. We see no reason why we should not 
concede that application, and reduce the penalty imposed by the 
justices to £4 19s. llfd., which will then allow the order of the 
justices imposing three months' imprisonment to be upheld. 
Of course that includes everything — both penalty and costs — 
and reduce the whole to one sum of £4 19s. llfd. That, as I 
said, would allow the order of the justices to be upheld, if on the 
remainder of the case we think the prosecution is sustainable. 
Assuming that the Act 6 Geo. IV., c. 129, under which the 
prosecution was begun, continued, and finished — assuming that 
to be the law for the moment — I will first mention the question 
of the substantial merits of the case. The facts are too disgusting 
to be recited from the bench. The question of intimidation arises 
under the s. 3 of 6 Geo. IV. It is provided under this particular 
section — 

"that from and after the passing of this Act, if any person, 
shall by violence to the person or property, or by threats 
or intimidation, or by molesting or in any way obstructing 
another, force or endeavour to force any journeyman manu- 
facturer, workman or other person hired or employed in. 
any manufacture, trade, or business, to depart from his 



CEIMINAL EEPORTS, 1860-1907. 



229 



hiringj or prevent or endeavour to prevent any journey- Bilby v. Habtlby 
man manufacturer, workman, or other person not being hired *''" ^™ '^°^' 
or employed from hiring himseK to, or accepting work or employ- The Chief Justice 
ment from any person or persons ; or if any person shall use or 
■employ violence to the person or property of another, or threats 
•or intimidation, or shall molest or in any way obstruct another 
ior the purpose of forcing, or inducing such person to belong to 
any club or association, or to contribute to any common fund, 
or to pay any fine or penalty, or on account of his not belonging 
to any particular club or association, or not having contributed 
or having refused to contribute to any common fund, or to pay 
any fine or penalty, or on account of his not having complied 
or of his refusing to comply with any rules, orders, resolutions, or 
regulations made to obtain an advance or to reduce the rate of 
wages, or to lessen or alter the hours of working, or to decrease or 
alter the quantity of work, or to regulate the mode of carrying 
on any manufacture, trade, or business, or the management 
thereof ; or if any person shall by violence to the person or pro- 
perty of another, or by threats or intimidation, or by molesting 
■or in any way obstructing another, force, or endeavour to force 
aiiy manufacturer or person carrying on any trade or business to 
make any alteration in his mode of regulating, managing, conduct- 
ing, or carrying on such manufacture, trade, or business, or to 
limit the number of his apprentices, or the number or description 
of his journeyman workmen, or servants ; every person so offering, 
■or aiding, abetting, or assisting therein, being convicted thereof 
in manner hereinafter mentioned, shall be imprisoned only, or 
shall or may be imprisoned and kept to hard labour, for any 
time not exceeding three calendar months." 

I think, the information was that the threats or intimidation were 
used on account of Henry AUis the complainant not having 
■contributed to a common fund. It appears that a common fund 
iad been formed for the purpose of making a provision or in some 
way providing for the comfort of some men who had been com- 
mitted on a criminal charge. We can hardly fail to see that 
these troubles arose out of the recent unhappy disturbances 
between labour and capital as they are repeatedly called. We 
sit here to take no part on either side, whichever way our sympa- 
thies may lie with one party or the other. It is not of course 
for us to make -any display of sympathy, nor to be influenced 
by any in our determination on what is really presented to the 
Court as a dry question of law. Our duty is limited entirely to 
that. Whichever way our decision goes, it implies sympathy 
with neither one party nor the other in respect to their relations 
one to the other, as capital or as labour. I will deal with the 
questions arising out of the trial, on the supposition that this 
statute of 6 Geo. IV., c. 129, is in force in the colony. The 



280 QUEENSLAND JUSTICE OF THE PEACE. 

UiLBY V. Hartley trouble appears to have arisen in consequence of Allis not having 
AKD Othebs. contributed, or refusing to contribute, 6s. lOd. to a common fund 

The Chief Justice — a fund which was really got up to give some help to men who- 
are now in gaol on a criminal charge. Looking at the language 
on the depositions, which is much too foul to pass through the 
mouth even of the Judge, whose position sometimes necessitates 
that he should recite such language, I think it is not necessary 
for me to recite it now. There is one part sufficient, without 
touching upon the fouler part, to sustain the charge (supposing 
the statute 6 Geo. IV. to be in force) that is : that the man 
was threatened if he did not contribute this sum of money he 
would be " chucked " out. We know very well that that means 
he would be thrown out and possibly injured if he did not submit 
to this dictation. Well, I think, that would be quite sufficient 
in itself to inspire in a man of reasonable strength of mind some 
degree of fear or discomfort, or a sense of an attempt being made 
to coerce him to do that against which his mind or his reason 
might rebel. I think it is perfectly clear that, upon the facts of 
the case, there was sufficient material to justify the magistrate in- 
coming to the conclusion that intimidation had been given. 
That being so, on the merits, the rule would have to be dismissed, 
but there is a further question of importance in the case, and I 
need not, perhaps, hesitate to say that a very great deal of clamour 
has been raised with regard to the character of the Act under 
which this prosecution was begun and ended. This is the Act 
6 Geo. IV., c. 129. Of course, if that Act is not in force in the 
colony the whole prosecution had no foundation, and the rule 
would have to be made absolute. Without going into the earUer 
Acts applicable to New South Wales, which, I think, it would be 
quite unnecessary for my part to go into, I think it depends — 
the operation of the question whether this Act is in force in this- 
colony depends — upon two things. First, what is the meaning of 
9 Geo. IV., c. 83 ? What law did it import into this colony,, 
and is there anything in 6 Geo. IV. that is repugnant to the existing 
state of circumstances in the colony, or was so when 9 Geo. IV.. 
was passed, that it was impossible to show that the legislature 
could contemplate the importation of 6 Geo. IV. into the law of 
New South Wales ? 9 Geo. IV. provides — 

" Provided also, and be it further enacted, that all laws and 
statutes in force within the realm of England at the time of the 
passing of this Act (not being inconsistent herewith, or with any 
charter or letters patent, or order in council which may be issued 
in pursuance hereof) shall be applied in the administration of 



CEIMINAL EEPORTS, 1860-1907. 231 

justice in the Courts of New South Wales and Van Die man's Bilby v. Habtlby 
Land respectively, as far as the same can be applied within the ^'^^ Othbrs. 
said colonies." The Chief Justice 

and so on. Now, many years ago, a very eminent Lord Chancellor 
hinted that the words " applied to the administration of justice," 
might possibly allude to the appUcation of this statute to the 
practice of the Courts, but would merely import into New South 
Wales the practice of the English Courts. Well, my understanding 
— and I speak with deference in criticising so eminent a Judge — 
my understanding of the words " administration of justice," 
implies that not only the practice of the law, but the substantive 
law, and the practice is intended to apply. I think, therefore, 
that these words imported not merely the practice of the Courts, 
but the actual substantive law of England, so far as it applied to 
the circumstances of the colony. That means, to my mind, 
that if the circumstances of the colony are such, or the 
circumstances of a particular case are such that the law 
caimot be appUed, it obviously should not be applied. In that 
case, the law of England — the substantive as well as the practical 
law — would cease to have any effect with respect to the particular 
case within the colony. At all events, whatever the circumstances 
of the colony might be at the time of the passing of 9 Geo. IV., 
if the Act 6 Geo. IV. is not inconsistent with those circumstances, 
and if it could be appUed, then probably it must be applied in the 
administration of justice. I am inclined to think myself, and 
probably it is important in connection with this case, that 
although the circumstances existing at the passing of 9 Geo. IV. 
might not make 6 Geo. IV. appUcable, or it might be inappHcable 
to the existing circumstances, still, if in the progress of Hfe and 
society circumstances so altered within the colony that it would 
apply, or it might be appUcable, then, I think, it would have to 
be applied, because there are many things which legislatures do not 
legislate for immediately. They legislate not only for immediately 
existing evils, but for prospective evils that are Ukely to arise. 
Now there is one of the statutes which have been referred to, 
which uses the words " to prevent certain misconstructions." If 
these misconstructions did not exist in the colony of New South 
Wales after the passing of that Act, and have not arisen, the Act 
would of course apply. In fact, a statute is passed to-day, but it 
speaks for all time until the legislature sees fit to repeal it, change 
it, or modify it. • A statute is not passed for a day ; it is passed 
for all time until the legislature sees fit in its wisdom or in its 



232 QUEENSLAND JUSTICE OP THE PEACE. 

BiLBY V. Haetley folly, to repeal it, to modify it, or to re-enact something else in 
AND Othehs. .^^ ^lo^QQ^ So long as it is in the Statute Book, if the circumstances 

The Chief Juetiee to which it might apply or ought to apply arises, it is our duty, 
sitting as a Court here, to apply it. I think the question then is : 
Is there anything in 6 Geo. IV. so absolutely inconsistent with the 
circumstances existing at the present time, that its provisions 
cannot be applied in the administration of justice ? On the face 
of it, looking at this Act — which seems to have repealed all the 
existing Acts affecting labour combinations, and to have passed 
one general statute — I may say that I cannot resist the conclusion 
that, at aU events, in respect to this particular offence, there is 
nothing in the statute inconsistent with its application in this 
colony. On the contrary, it seems to me to apply to the circum- 
stances of this particular case. I may say in dealing with statutes 
brought into force by the operation of 9 Geo. IV., c. 83, some 
portion of the statute may not apply, and some other portion 
may apply. Time or change of circumstances may sweep away 
the operation of a part of the statute, or time may bring 
into operation other parts, or may retain other portions of the 
statute in force, notwithstanding the lapse of time. Therefore, 
I am not prepared to say that the statute obviously is not intended 
to apply to the colony. The mere fact that you can pick out 
from the centre some few words which would have laid the 
foundation for prosecutions of this sort, would probably not be 
sufficient to justify them, but looking at the whole thing there is 
nothing in this Act, in its object, or in its character, that is in any 
way inconsistent with the appUcation of some portion of it, 
whilst in regard to other portions, one might disregard its appUca- 
tion. There is nothing on the face of it, that I can see, that would 
make 6 Geo. IV. inapplicable. Therefore, by the operation of 
9 Geo. IV., c. 83, I think it has been brought into force in the 
colony, and it remains in force, and that the prosecution was well 
founded. I think, therefore, there ought to be reduction with 
regard to the money, reduction of the excess, and the conviction 
ought to be upheld. On the two questions whether the sub- 
stantive offence was proved, and whether that offence was against 
the law of the colony, I think they are settled by the operation of 
these two statutes here. With regard to the question of excess, 
I think the complainant ought to have his costs. It is qiiite 
clear he was compelled to come here, and that on the other part 
of the case the Crown ought to have their costs ; so that there will 
be two sets of costs. 



CRIMINAL REPORTS, 1860-1907. 



233 



Harding J. : I agree in great part with the judgraent of ^^^^^ «. Hartley 

mi /^i •tT't-rti* 1 AND UTH£.nSt 

ihe Ohiei Justice, but I defer expressing my opinion as to the 

application of English law to this matter. I think the statute Harding J. 

9 Geo. IV., passed a mass of laws for New South Wales, which were 

to be extracted from the larger mass of the laws of Great Britain 

and Ireland, so far as they were appUcable to the colony. Secondly, 

I think that the laws that could be taken out from the Statute 

Book and the Common Law at the time of the passing of that 

Act, are and were at once, and have ever since been the law of 

New South Wales. I don't think that if any part of the statute 

law of England was not at that time brought in by 9 Geo. IV., 

and at once became appUcable if the cause arose, that it, so to 

speak, lay dormant and became law at a future time. I would 

put it this way : that by 9 Geo. IV. all EngUsh law applicable 

to the colony at once attached, and although the occasion for the 

use of it might not arise for ten years, twenty years, or fifty years, 

still it was there as the sanction for the ^ionduct of the people 

thereafter. I consider that the moment 9 Geo. IV. was passed 

it became part of the law, and has ever since remained law as a 

sanction for the good conduct of the people. The rule must be 

discharged in the terms mentioned by The Chief Justice. 

Real J. : I have nothing to add to the judgment of The Chief Real J. 

Justice. I desire to offer no opinion on the question raised by His 
Honor, because I have not sufficiently considered it. To my 
view the circumstances of the colony at the time of the passing 
of 9 Geo. IV. was clearly such as would render 6 Geo. IV. capable 
of being applied. Consequently, the effect of the statute 9 Geo. 
IV., would be such as to apply that law. It was not sufficiently 
argued, and I have not sufficiently considered it to offer any 
opinion on the point thrown out by The Chief Justice as to whether, 
if the circumstances of the colony had been such that 6 Geo. IV. 
was not applicable at the year of the passing of 9 Geo. IV., an 
alteration in them made it applicable, and we could hold it to be 
applicable. It was not necessary to consider that question in 
this case, and it has not been argued and I have not considered 
it sufficient to express an opinion. In every other respect I 
concur in the opinions expressed in the judgment of The Chief 
Justice. 

LiLLEY C.J. : The excess is to be reduced with costs. The rest Lilley C J, 
of the rule is to be discharged without costs. I agree that there 
was not sufficient time to consider the point I raised. With 



234 QUEENSLAND JUSTICE OF THE PEACE. 

BiLBY 1-. Hakxley regard to that it is a very fine point, and my opinion, no doubt, 

AKD OtHEBS. 



Lilley C.J. 



on that, will be taken as academical. 

Solicitor for appellant : A. J . Thynne. 
Solicitor for repondents : Crown Solicitor. 



[Full Cotjkt.] 
RAWLINGS V. HALY AND ANOTHER. 

1 4 g.L.J. 160. — Note.— 29 Vic, No. 5, s. 26, is repealed, see now ss. 22, 469, and 
^ 476 of^Criminal^Code.S See>lso;^ Black v. Turner (6 Q.L.J. 153, post), Keable 
l^^ V. Clancey (3 Q.J.P.R. 206, 1909 S.B.Q. 345).] 

1892. Injuries to Property Act of 1865 (29 Vic, No. 5), s. 2Q—Bona fide 

ilai'cJi. claim of title — Jurisdiction of justices. 

itZte|/ G.J. jj agreed to sell land to C. C. paid part of the purchase money. About three ' 

Real J. weeks afterwards, but before the whole of the purchase money had been paid, R. 

began to remove the wire from the fence surrounding the land agreed to be sold. 

C. laid an information against R., under s. 29 of The Injuries to Property Act of 
1865. It appeared from the evidence that there was a dispute as to certain of 
the terms of sale. C. said K. was entitled to take away a crop of potatoes. R. 
said he was entitled to take away the improvements, and that he removed the 
wire under the bona fide belief that the property was his, and that he was entitled 
to do so. 

R. was convicted and ordered to pay a fine of £5, with £7 for damages, and 
£3 3s. for costs, or in default of payment, to be imprisoned for three months. 

Held, that this was a bona fide claim of right, and that R. should be relieved 
of the order for fine and imprisonment. 

Motion, made at the February Sittings of the Full Court, 
to make absolute an order calhng upon Charles Richard Haly, 
Pohce Magistrate at Dalby, and James Clarke of Dalby, to show 
cause why the conviction of William Rawlings, under the 26th 
section of The Injuries to Property Act of 1865 (29 Vic, No. 5), 
should not be quashed on the grounds : (1) That there was no 
evidence to support the conviction. (2) That the evidence showed 
that the defendant acted under a bona fide claim of right. (3) 
That the said Charles Richard Haly had no jurisdiction to try 
or decide the matter of the said complaint, as defendant raised a 
bona fide claim of title in himself as against the complainant to 
the fence alleged to have been destroyed, and to the land upon 
which the same was situate, and the conviction involved a decision 
as to such title. 



CRIMINAL EEPORTS, 1860-1907. 235 

Perske, for appellant, moved the rule absolute. Hawlings v. Hali 

AND ANOTHEU. 

Wilson, for respondent Clarke, appeared to show cause. 

Wilson took a preliminary objection that defendant had not 
exhausted all his remedies. The conviction was under s. 26 of 
The Injuries to Property Act, and remedy was by way of appeal to 
the District Court, as provided by s. 71. On the merits, he 
contended the question of title was for the justices as a matter 
of fact. The justices have decided that it is not a bona fide claim 
of right, and the Court AviU not interfere. He referred to Reg. v. 
Walker, 4 Vic. Rep., (L.) 452 ; Reg. v. Blackburn, 32 L.J. (M.C.) 41, 
46 ; Paley v. Birch, 16 Law Times Rep. 410 ; and Stone on Justices 
of the Peace, p. 72. 

Perske referred to Paley on Convictions, p. 144. " Whenever 
the title to property is in question, the exercise of a summary 
jurisdiction by justices of the peace is ousted." He quoted in 
support Reg. v. Burnaby, 2 Ld. Ray., 900 ; Reg. v. Huntsworth, 
33 L.J. (M.C.) 131 ; and Reg. v. Cridland, 27 L.J. (M.C.) 31. 

Decision was reserved ; prisoner meanwhile being allowed 
out on bail, himself in £40, and two sureties in £20 each, or one 
surety in £40, with condition that prisoner surrender himself 
into custody if rule discharged. Recognizance to be taken before 
any justice of the peace. 

At the March Sittings of the Full Court, the following judgment 
was delivered : — 

LiLLEY C.J. : This is an appUcation to quash a conviction Lilley C.J. 
against one WiUiam Rawlings, under the statute against the 
maUcious destruction of property. The charge against him was 
that he destroyed maliciously a quantity of fencing, the property 
of the complainant, one James Clarke, and the Magistrates 
convicted him, and ordered him to be imprisoned, in default of 
payment of a fine of £10, for three months. He was imprisoned, 
and at last Court the Court gave him bail. Therefore, if he has 
suffered, it has been from his own obstinacy, not from the action 
of the Courts. The ground on which the rule is sought — and it 
was raised at the trial — is, that Clarke alleged that he had a bona 
fide claim of right. The circumstances are somewhat remarkable. 
It appears that the fence which Clarke was charged with destroy- 
ing stood between two properties which belonged to the defendant. 
There was a dispute whether the fence stood upon his own land or 
upon the other piece of land which he had agreed to sell to the 



236 QUEENSLAND JUSTICE OF THE PEACE. 

Bawlings u. Halt complainant Clarke. It appears that there had been transactions 

■ between them of this kind. There is no doubt that there was 

Lilley C.J. a contract in which the defendant agreed to sell to Clarke a piece 
of land adjoining his own. Part of the purchase money was 
paid to E-awlings, the defendant, and then there was a dispute 
as to certain of the terms. Clarke said he was entitled to take 
away a crop of potatoes from the allotment which he had sold. 
The defendant said he was entitled to take away the improve- 
ments. It is clear that on the day for the completion of the 
contract, by the payment of the full amount, the purchaser Clarke 
was a defaulter. Then Rawlings began to remove the wire from 
the fence, and that is the offence with which he was charged before 
the Magistrates. He set up the claim that he was entitled to 
take it away as part of the improvements, and the evidence 
was taken on which the Magistrate decided that it was not a 
bona fide claim of right. Beyond the fact of his attempt to remove 
the fence, there was no evidence of any want of bona fides, and 
on the other hand the admitted matters — the non-payment 
of the purchase money, the right to move a crop of potatoes, 
and other little circumstances — all went to show that there was 
between the parties matter of dispute, and the question is, if I 
may use a familiar term, was this a mere bogus assertion, or was 
it a bona fide claim and assertion of his right to the improvements ? 
What object could he have ? What could he secure by these 
proceedings ? If the contract was " off " entirely by reason of 
Clarke's default, there was nothing to be gained by the removal 
of the fence. If, on the other hand, the property was still within 
the grasp of Clarke, and he could assert his right under the con- 
tract under which he was admittedly a. defaulter, he had half the 
purchase money, and might have recouped himself for any injury 
in consequence of Rawlings taking the wire from the fences. 
Upon the whole we think it ought to have been held by the Magis 
trate there was a bona fide claim of right, and that this man should 
be relieved of the order for fine and imprisonment. The con- 
viction will, therefore, be quashed, vnth costs against Clarke. 

Harding J. Haeding J. and Real J. concurred. 

Eeal.L 

Rule absolute accordingly, with costs. 

Sohcitor for appellant : E. Winter. 

Solicitors for respondents : Wilson, Newman-Wilson <fe 
Hemming. 



CRIMINAL REPORTS, 1860-1907. 



237 



[Brisbane Criminal Sittings.] 
REGINA V. HORROCKS. 

[4 Q.L.J. 218.— Note.— Sec. 64 of 31 Vic, No. 13, is repealed, see now s. 10 of 
Criminal Law Amendment Act of 1894 (58 Vic, No. 23). which is not identical 
with the repealed section.] 

Criminal law — Evidence — Untrue representation — Evidence and 1892. 

Discovery Act of 1867 (31 Vic, No. 13), s. 64:— Burden of ^^th^^ust. 

proof. Harding J. 



H. was arrested on a charge of murder. He asked the arresting constable, B., 
whether human blood could be distinguished from any other blood. B. said 
" Yes, it could." 

Held, that the representation was untrue, and any confession or statement 
made by the prisoner subsequent to such representation could not be admitted 
in evidence against the prisoner. A detective untruly told the prisoner the 
nvurderer could be identified. 

Held, that no conversation with the prisoner subsequent to such representation 
could be received under s. 64 of The Evidence and Discovery Act. The onus is 
on the Crown of rebutting the presumption that the subsequent statements of 
the prisoner were induced by the representation. 

Information against Francis C. Horrocks for murder. 

Power prosecuted for the Crown. Lilley and GonlanYSox the 
prisoner. 

On the first day of the trial Detective Grimshaw gave a con- 
versation with the prisoner, which was received. He then 
deposed that he told the prisoner " the murderer can be identified." 
This being an untrue representation, further conversation was 
rejected. On a later day of the trial, Boyle, the arresting constable, 
deposed that, before the arrival of Detective Grimshaw, the 
prisoner and he had a conversation ; that the prisoner asked 
him, " Can they distinguish human blood from any other blood ? " 
and he answered " Yefe." 

Lilley objected to the reception of any subsequent conversation 
on the ground that this was an untrue representation. 

Harding J. upheld the objection pending an answer from a 
scientific witness. 



Harding J. 



288 



QUEENSLAND JUSTICE OP THE PEACE. 



Begina v. 
bobbocks. 



Harding J. 



Robert Mar, the Government Analyst, deposed in answer to 
a question from Harding J. : "If the question as asked — Can 
they distinguish human blood from any other blood '! -yes, is 
not a true answer according to the present state of science."' 

It was in evidence that Boyle's untrue representation preceded 
the statements of the former to Detective Grimshaw. 

lAlley thereupon moved that so much of the evidence already 
given as went to prove a confession made by the prisoner after 
the above statement made by Boyle, should be struck out 
from the Judge's notes on the grounds that there was a false 
statement amounting to a representation, and that, therefore, 
any confession after that must be deemed to have been induced 
by it, unless evidence to the contrary existed, and there was no 
evidence. Evidence and Discovery Act, s. 64. 

Power : There is nothing to show that the subsequent state- 
ments were induced by Boyle's statement. 

Harding J. : It would be well if all constables and others in 
control of a prisoner would give the statutory caution to him 
upon taking him over from another's charge. This is especially 
necessary here, as s. 64 of The Evidence and Discovery Act is 
peculiar to Queensland. I hold that such evidence must be 
struck out as occurring subsequent to an untrue representation, 
and that the onus is thrown on the Crown of rebutting the pre- 
sumption that the subsequent statements of the prisoner were 
induced by the representation. 

Solicitor for prisoner : E. W. Goertz. 



[Brisbane Criminal Sittings.] 
REGINA V. FRANZ. 



]892. 
1st September. 

Harding J. 



[4 Q.L.J. 219.— Note.— 50 Vic, No. 14, s. 3, is repealed, see now s. 656 of Criminal 

Code.] 

The Offenders Probation Act of 1886 (50 Vic, No. 14), s. 3— Two 
informations presented simultaneously — Previous conviction. 

Two informations were presented against F. for cattle stealing. F. pleaded guilty 
to both, and asked the extension of The Offeiiders Probation Act. He was sentenced 



CRIMINAL REPORTS, 1860-1907. 



239 



to eighteen months' hard labour on each information, the sentence being bus- Eegi.na u. Fbanz. 
pended on the first. 

Held, that as he was convicted under the first charge, the benefit of the Act 
could not be extended to the offence 6ontained in the second information. 

Information against Franz for cattle stealing. 

Power prosecuted ; Rutledge, for prisoner. 

Two informations were presented against the prisoner for 
cattle stealing. He pleaded guilty to both. 

Rutledge called evidence of character and asked that the 
prisoner might have the benefit of The Offenders Probation Act. 
The prisoner had not been previously convicted. 

Harding J. : Here are two informations. If he is sentenced 
on the first he is convicted, and how can I extend the benefit of 
that Act to him on the second. Sentence — eighteen months' 
imprisonment with hard labour on the first information, to be 
suspended upon prisoner entering into his own recognizance in 
£80 before a Justice of the Peace, under the terms of The Offenders 
Probation Act ; eighteen months' imprisonment with hard labour 
upon the second information. 

Solicitors for prisoner : Atthow, Bell <& Stumm. 



Harding J 



[Fttll Court.] 
REGINA V. DUNCAN. 



[4 Q.L.J. 219. — Note.— 29 Vic, No. 6, s. 77, is repealed, see now ss. 398, S75, and 
581 of Criminal Code. As to time at which point may be raised, see s. 668 
of Criminal Code. Case referred to in R. v. Hamilton (9 Q.L.J. 251, post).] 

Crown case reserved — Embezzlement — Larceny— General verdict — 
29 Vic, No. 6, s. 77. 

A prisoner was charged with embezzlement, the facts showed a case of larceny, 
the jury brought in «, general verdict of guilty, and the prisoner was sentenced ; 
but the sentence was suspended at the request of the prisoner's counsel to reserve 
the question. 



1893. 
September. 

LUley Q.J. 
Harding J. 
Cooper J. 
Chubb J. 
Real J. 



240 QUEENSLAND JUSTICE OF THE PEACE. 

Eegina v. Duncan Edd, that the qviestion might be raised at any time before sentence, that the 

conviction must be reversed, the judgment vacated, and bail released. 

Beg. V. Gorbutt, Dears & B. 168, followed. 

Ceown Case Reserved, stated by Mr. District Court Judge 
Noel. 

The prisoner was charged at Townsville on an information for 
embezzlement. The Judge directed a case of larceny. The jury 
brought in a general verdict of guilty. 

Macnaughton, for prisoner, submitted the proceedings should 
be quashed. The prisoner was sentenced, but the sentence sus- 
pended pending the decision of the question raised by Mr. 
Macnaughton. 

Power, for the Crown, referred to s. 77 of The Larceny Act of 
1865, where, on an information for embezzlement, a prisoner may 
be found guilty of simple larceny, or larceny as a servant, 
[LiLLEY C.J. : That means a special verdict is required.] There 
is a similar case, Reg. v. Gorbutt, 26 L.J. (M.C.) 47. The only 
question is whether the objection was too late. [Real J. : How 
was it too late ? It could not have been made before the verdict.] 
The prisoner's counsel might have asked the Judge to so direct the 
jury. 

Harding J. : We have decided that a point may be taken at 
any time during the trial, in Reg. v. Pieremont, 2 Q.L.J. 95, so long 
as the prisoner has not been removed. 

Lilley, for prisoner, was not called upon. 

Lilley C.J. LiLLEY C.J. : Verdict was tantamount to finding the prisoner 

guilty of embezzlement. The facts amounted to larceny. The 

conviction must be reversed, the judgment vacated, the prisoner 

discharged, if in custody, otherwise the bail to be released. 
HardinR J. 
Cooper J. Harding, Coopeb, Chubb, and Real JJ. concurred. 

Chubb J. 

Eeal J. Solicitors for prisoner : Powers & Robinson, agents for O'Malley, 

Townsville. 



CRIMINAL REPOETS, 1860-1907. 241 

[Full Court.] 
Be The Extradition Acts, 1870 and 1873, In re CARLO PEDRO. 

[5 Q.I1.J. 22. — Note. — §ee also Commonwealth Extradition Act (No. 12 of 1903). 
Case followed in R. v. Friday, 11 Q.L.J. 26, post.] 

Extradition — Habeas Corpus — 33 and 34 Vict., c. 52, ss. 9, 10, 11 — 1893. 

Evidence — Eight of prisoner to be heard — Return. February. 

A fugitive convict was brought before a police magistrate in Brisbane for an ex- 
tradition order. The prisoner was undergoing sentence for a crime committed in 
Queensland. A warder from New Caledonia demanded his extradition for an offence 
alleged to have been committed in France, and for which he had been sentenced. 
The order for committal was made. An application for habeas corpus \7as then 
granted on the ground that the prisoner was not given a chance of defence, and 
could have disputed his identity. 

Held, on the return to the habeas copiis, that the prisoner could not be detained 
on the conviction under The Extradition Act, but must be remanded to custody 
under the warrant mentioned in the amended return to the writ. The Court can 
go behind the return and review the police magistrate's decision. 

In re Castioni, 1891, 1 Q.B. 149, followed. 

Reg. V. Hiistin, 1 Q.L.J. 16, discussed. 

Motion for the release of a prisoner on a writ of habeas corpus 
directing the keeper of Her Majesty's gaol at Brisbane to bring up 
the body of Carlo Pedro, a prisoner in custody under a warrant 
made under The Extradition Act. The habeas corpus was granted 
on the grounds (1) that the prisoner had no opportunity of getting 
legal advice ; (2) that he did not answer to the description which 
had been suppUed ; (3) that he was not the fugitive criminal 
whose extradition was demanded by the French authorities. 

The prisoner had been arrested in Queensland and sentenced 
to seven years' imprisonment for robbery. A French warder 
from New Caledonia appUed for the extradition of the prisoner, 
as being a man who had been sentenced to imprisonment for life 
for theft and murder in France in 1878. The prisoner was brought 
up several times at the City Police Court, but the French oificial 
was unable to identify him personally, but did so from a written 
description of certain marks on the body of the prisoner. An 
affidavit of a medical man, filed for the prisoner, showed there 
were no such marks as alleged by the French authorities. The 
poUce magistrate committed the prisoner. An appUcation for 
habeas corpus was then granted as above. The prisoner was 
produced, and the return read and referred to the Full Court by 
Harding J. 



242 



QUEENSLAND JUSTICE OF THE PEACE. 



Be The Extra- 
dition Acts, 1870 
and 1873, In re 
Carlo Pedro. 



Harding J. 



G. W. Power, for the Crown. 

Harding J. : In England it is usual to refer cases like these to 
the Secretary of State for the Colonies,. and as His Excellency the 
Governor is his representative here, I have caused communica- 
tion to be made to the Colonial Secretary, and expect that it wiU 
by that means come to His Excellency's knowledge. 

Power : The question whether the prisoner had a right to give 
evidence on his own behalf did not arise. Clarke on Extradition, 
3rd edition, 214. 

[Real J. : I think the prisoner ought to have had an oppor- 
tunity of being heard. He had only to bare his breast to show 
that the marks with which it was sought to prove his identity 
were not there.] 

The question of identity in extradition is only necessary in 
criminal cases, but where extradition of a prisoner under sentence 
is asked for, it is only necessary to make out a case before magis- 
trates. 

[Real J. : The whole question to my mind is whether by the 
law of England you can convict a man without his being heard.] 

The evidence as to identity is very strong. There is no right 
to go behind the return. In re Keogh, 15 V.L.R. 395. 

[Harding J. referred to In re Castioni, 1891, 1 Q.B. 149.] 

Re Guerin, 58 L.J. (M.C.) 45, foot note ; Reg. v. Hustin, 1 
Q.L.J. 16. If the Court has power to send the case back to the 
magistrates they might try the questions of fact on the affidavits, 
or send it to a jury. 

Harding J. deUvered the judgment of the Court : — 
This is a matter adjourned from my chambers to this Court, 
in consequence of my having felt myself hampered by a decision 
of Mr. Justice Pring in the case of The Queen v. Hiistin, 1 Q.L.J., 
p. 16, in which His Honour decided that, upon a habeas corjms 
the Court, or at least he sitting as the Court, would not go behind 
the return, the return being of a similar nature to that in this 
case. Before me in Chambers the prisoner was represented by a 
solicitor or legal practitioner, but before this Court he has not 
been represented, and the Court has given such assistance as it is 
able to give, and I think, before we finally deliver judgment, 
although we have done all on his behalf that we could have 
done if we had been his counsel, that he should be asked 



CRIMINAL REPORTS, 1860-1907. 243 

if he has anything to say on his own behalf. Prisoner, do you j^j^oJ' ^cf "^ 1870 
desire to be heard further ? [The Warder : Prisoner has not and 1873, la re 

got anything to say, your Honour, except that he is not the ^^"^^ ^■"'*''- 

man.] As it stands now, a writ of habeas corpus was issued for Harding J. 
the production of this prisoner, and for the return of the authority 
for his detention. He has been produced, and the return has been 
read. It is under a warrant under The Extradition Acts, and also 
under a warrant by this Court sitting in its criminal jurisdiction. 
It is only as to the present ground that we have to deal with him. 
As to the present ground it appears that he was originally brought 
before the PoUce Magistrate of North Brisbane, and that the 
proceedings there have apparently been regular up to a certain 
point ; that is to say, the case against him was entered on, and 
evidence to convict him was tendered — and possibly sufficient 
evidence, if uncontradicted — but at this stage, instead of pro- 
ceeding as in an ordinary inquiry before a Magistrate, the prisoner 
was at once committed. Now there is a maxim of law, " Audi 
alteram partem," which is always upheld, and has been conse- 
quently upheld by this Court, which is to the effect that wherever 
anjrthing in the nature of judicial proceedings is going on, 
each party in those proceedings must be heard before an adjudica- 
tion can be made against him. Here he was not in the usual 
way asked if he had anything to say or any evidence to give, but 
the conviction was entered at once. That we consider to be 
WTong, and, consequently, if this was a proceeding for a writ of 
certiorari, the adjudication could have been quashed. We have 
now to see whether, the proceedings here being of habeas corpus, 
a man can be held under a conviction which would be quashed 
on another proceeding. The sections of the Act necessary to be 
referred to are The Extradition Act, 1870 (33 & 34 Vict., c. 52), 
ss. 9, 10, and 11, " when a fugitive criminal is brought before a 
police magistrate, the police- magistrate shall hear the case in the 
same maimer and have the same jurisdiction and powers, as near 
as may be, as if the prisoner were brought before him charged 
with an indictable offence committed in England." Section 10 
enacts that " in the case of a fugitive criminal accused of an 
extradition crime, if the foreign warrant authorizing the arrest 
of such criminal is duly authenticated, and such evidence is 
produced as would, according to the law of England, justify the 
committal for trial of the prisoner, if the crime of which he is 
accused had been committed in England, the police magistrate 
shall commit him to prison, but otherwise shall order him to be 



244 



QUEENSLAND JUSTICE OF THE PEACE. 



He The Extra- 
dition Acts, 1870 
and 1873, In re 
Carlo Phdbo. 

Harding J. 



discharged." The second paragraph states, " In the case of a. 
fugitive criminal alleged to have been convicted of an extradition 
crime, if such evidence is produced as would, according to the 
law of England, prove that the prisoner was convicted of such 
crime, the police magistrate shall commit him to prison, but 
otherwise shall order him to be discharged." Before I read s. 11 
I wiU say a word or two on that s. 10. On that section there are 
two sets of cases provided for. The one case is that of a fugitive 
convict ; the other is that of a fugitive accused or suspected 
person. Now, with regard to the fugitive suspected person, 
consider what are the proceedings in this country with regard 
to an accused. He is brought before the magistrate for the 
purpose of committal for trial, and upon the production of evidence 
which raises such a case as to induce the magistrate to think 
that he ought to be committed for trial, then the magistrates' 
are to commit him. They have not to weigh the evidence and 
say whether the man is guilty or not guilty, but to come to the 
conclusion that such a suspicion is aroused that the justice of the 
case can only be satisfied by a trial. Upon that case there would 
arise the legal existence of the crime, and the fact that the party 
before them was the party who committed the crime. Now, as to 
each of these there would be an issue — has such a crime been 
committed ? Is the man that stands in the dock the man that 
committed that crime ? And the jury in the Criminal Court, if 
the Court were sitting in its criminal jurisdiction, would decide 
both questions. Secondly, if prima facie evidence were brought 
before the magistrates that such a crime had been committed, 
and that the man before them was the man — it does not matter 
whether there is conflicting evidence or not, for that is beyond the 
magistrates' power to adjudicate upon — they have got to send it 
on to the further Court. Those are the cases which are provided 
for in the first part of s. 10, so that the paragraph from Clarke on 
Extradition, which was read, would appear to have very Uttle 
application to them. And then there is another class of cases which 
come before the magistrates, more commonly called summary 
justices, where the magistrate is judge and jury on the case, and 
decides it, inflicting punishment as the result. In these cases 
each side must necessarily be heard, and that is what ought to- 
have occurred in this case. But that is not what has occurred, 
in this case. The case before us now is one of a fugitive convict 
brought before the magistrate for an extradition order, and 
the magistrate has proceeded as if it were a fugitive accused 



CRIMINAL REPOETS, 1860-1907. 



245 



brought before him. But it is not necessary to say that even in 
that case the magistrates would be right, for I doubt in my own 
mind whether even on that he ought not to have heard what there 
was, because he might have produced evidence so conclusive 
that there might not be any answer to it. But that need not be 
dwelt upon. Then we come to the 11th section, which says " If 
the police magistrate commits a fugitive criminal to prison, 
he shall inform such criminal that he will not be surrendered 
until after the expiration of fifteen days, and that he has a right 
to apply for a writ of habeas corpus. ... If a writ of habeas 
corpus is issued after the decision of the Court upon the return 
to the writ, it shall be lawful for a Secretary of State, by warrant 
under his hand and seal, to order the fugitive criminal (if not 
delivered on the decision of the Court) to be surrendered." Now, 
reading this 11th section, it seems impossible to conceive its 
meaning to be to give him a right to apply for a habeas corpus 
within fifteen days, unless something can be done on that habeas 
corpus, because, if on that habeas corpus a return has to be made, 
and the magistrate has committed, it would be simple justice to 
remand him, and the benefit given him by the 11th section would 
seem to be a nulUty ; but if, on the other hand, something can be 
done on the return of that habeas corpus, then the 11th section is 
intelligible and the remedy a useful one. Now, on that section, 
there have been decisions quoted. One of them is in a note to 
In re Ouerin, 58 L.J. (M.C.), p. 45, " A prisoner also obtained an 
order for a habeas corpus on the ground that he was a British 
subject. The Court held that it was competent for them to 
review the magistrate's decision on that point, and, as the affidavits 
were of a conflicting character, ordered an issue to be tried before 
a jury to determine this question. The issue was tried on the 
21st December, before Baron Huddleston and a common jury, 
and the prisoner was ordered to be delivered to the French 
authorities." And then there is a case of Re Castioni in L.R., 
1891, 1 Q.B. 149, and there the Judges went into this point at 
considerable-, length.- The' judgment of Mr. Justice Denman 
bears upon the subject, and I quote from p. 157 of that judgment. 
He went into both of these sections at length. " It was at first 
contended, in opposition to the application for a habeas corpus, 
that if the magistrate upon this question once made up his mind 
the Court had no jurisdiction to deal with it. It appears to me 
that this proposition cannot' be maintained on the very face of 
the Act itself, which requires by s. 11 that the magistrate shall 



Re The Extra- 
dition Acts, 1870 
and 1873, /» re 
Cablo Pedbo. 

Harding J. 



246 QUEENSLAND JUSTICE OP THE PEACE. 

Se The Extra- inform the prisoner that he may apply for a habeas corpus, and 
^^nd 181 3, 'in re if he is entitled to apply for a habeas corpus, I think it follows 
Caklo Pedbo. ^iia,t this Court must have power to go into the whole matter, 
Harding J. and in some cases certainly, if there be fresh evidence, or perhaps 
upon the same evidence, might take a different view of the matter 
from that taken by the magistrate." Then Mr. Justice 
Haivkins deUvered judgment, and at p. 161 says : " Now, the 
matter has been before the magistrate, and the magistrate acting 
upon the information and the evidence before him, has come 
to the conclusion that two things exist. First of all, that there 
is abundance of evidence to justify him in committing the man 
to be tried for murder — that is to say, there would have been 
had this crime been committed in this country ; and, secondly, 
he has come to the conclusion, rightly or wrongly, on which I 
will have a word or two to say, that the offence was not of a 
political character, and that, therefore, he ought to be given up. 
The matter now comes before us — I will not say to review the 
whole of his decision — but to ask ourselves whether or not, having 
regard to the whole of the circumstances which are brought to our 
attention, and which are proved by the depositions and other 
evidence in the case, we come to the same conclusion as the 
magistrates, or whether we deliberately arrive at an opposite 
conclusion. Now, it seems to me to be impossible to say,^ for 
the reasons which were stated in the course of the argument, 
that if a man has a right to move for a habeas corpus in order that 
the case may be reviewed, or for the purpose of getting his dis- 
charge, he might not enter into matters which showed he had 
been guilty of no offence at all ; and I should have said that by 
no means was the matter concluded by the magistrate's decision 
that he be committed for trial, because the magistrate does not 
sit, when he is committing for trial, as a magistrate sitting finally 
to dispose of the case and to give judgment upon it ; but he states 
his opinion that there is a prima facie case, and on that ground he 
signs his warrant of committal. Again, with reference to the 
question of whether the magistrate has a right to deal with a 
man and to deal with his objection of being committed for trial 
for an extradition crime, I entertain no doubt that the magistrate 
has no right and no jurisdiction to find finally, as against the 
prisoner, whether or not he has committed that crime which he is 
charged with having committed, or whether that crime is one of a 
political character. I desire to call attention to certain pro- 
visions in The Extradition Act. First, by s. 3, a fugitive criminal 



CEIMINAL EEPORTS, 1860-1907. 



247 



shall not be siirrendered if the offence in respect of which his sur- 
render is demanded is one of a political character, such as treason 
or other matters ; or, if he proves to the satisfaction of the police 
magistrate that the requisition for his surrender has, in fact, been 
made with a view to try him for an offence of a political character. 
These latter words undoubtedly tend to show that Sir Charles 
Russell was wrong in the view that he took that the onus is upon 
those who seek for the extradition to show that the offence com- 
mitted is not of a poUtical character, because it must be upon 
the person who seeks to be discharged on the ground that his 
surrender is, in fact, asked for with a view to punish him for an 
offence of a political character ; the onus of estabhshing that 
is upon the alleged criminal himself. Now, s. 9 and s. 10 seem to 
me to have some bearing on the question as to whether or not 
the offence of which a man is charged is of a poUtical character. 
First of all, the ninth section enacts that " When a fugitive 
criminal is brought before a police magistrate, the poUce magis- 
trate shall hear the case in the same manner, and have the same 
jurisdiction and powers, as near as may be, as if the prisoner were 
brought before him charged with an indictable offence committed 
in England." If he were charged before a magistrate with an 
indictable offence committed in England, the question of whether 
or not the offence for which he was indicted were of a political 
character or not would make no difference. But under this 
section the magistrate is to deal with him as though the offence 
charged were an indictable offence committed in England. Then 
the section goes on to say : " The poHce magistrate shall not 
adjudge that the offence is of a political character, but he shall 
receive any evidence which may be tendered to show that the 
crime of which the prisoner is accused, or alleged to have been 
convicted, is an offence of a political character, or is not " an 
extradition crime." It seems to me that the language of this 
part of the ninth section in itself shows that the onus is on the 
person who seeks to absolve or exonerate himself from the liability 
to be handed over to the Government of the territory within which 
the crime was committed. I find here, in furtherance of what 
I have to say about this question of the jurisdiction of the magis- 
trate, s. 10, which is, to my mind, by no means unimportant : 
" In the case of a fugitive criminal accused of an extradition crime, 
if the foreign warrant authorising the arrest of such criminal is 
duly authenticated, and such evidence is produced as (subject 
to the provisions of this Act) would, according to the law of 



Re The Extra- 
dition Acts, 1870 
and 1873, In re 
Carlo Pedbo. 

Harding J. 



248 



QUEENSLAND JUSTICE OF THE PEACE. 



Be The Extra- 
dition Acts, 1870 
and ] 873, In re 
Carlo Pedbo. 

Harding J. 



England, justify the committal for trial of the prisoner if the 
crime of which he is accused has been committed in England, the 
police magistrate shall commit him to prison ; but otherwise 
shall order him to be discharged." It does not seem to give 
the magistrate himself the power of dealing with the matter 
other than this : he is to consider whether the crime is one which, 
if committed in England, would have made it imperative upon him 
in discharging his duty to commit the man to prison. If so, 
he is to commit him to prison, but he is, as I have already shown 
by s. 9, obliged to receive any evidence which may be tendered 
to show that the crime is of a political character, and that is 
analogous to the provisions in Russell Owrney's Act (30 & 31 
Vict., c. 35), which makes it the duty of a magistrate, if a prisoner 
wishes to call evidence in support of his defence which he intends 
to set up when he comes to be indicted, to take that evidence and 
hand it over to the tribunal before whom the prisoner is ultimately 
to appear. In furtherance of this view that I take, I read the 
11th section : " If a police magistrate- commits a fugitive criminal 
to prison, he shall inform such criminal that he shall not be 
surrendered until after the expiration of fifteen days, and that 
he has a right to apply for a writ of habeas corpus," which may very 
well mean this : "I have power to commit you to prison because 
I am satisfied that you have been guilty of a crime to which the 
extradition law and treaty apply ; you have a right to have any 
evidence taken on your behalf to show that you are a criminal 
who ought not to be sent out because your offence, even if com- 
mitted, was of a political character. I wiU take the evidence for 
you. You have fifteen days to make application for your release 
if you think fit to move for a habeas corpus." What follows 
afterwards shows that it is not the magistrate who is to determine 
these matters, but it is the Home Secretary who is to determine 
whether or not ultimately the prisoner is to be sent abroad, because 
the second part of the 11th section goes on to say : " Upon the 
expiration of the said fifteen days, or if a writ of habeas corpus 
is issued after the decision of the Court upon the return to the 
writ, as the case may be, or after such further period as may be 
allowed by a Secretary of State, it shall be lawful for a Secretary 
of State, by warrant under his hand and seal, to order the fugitive 
criminal (if not delivered on the decision of the Court) to be sur- 
rendered to such person as may, in his opinion, be duly authorised 
to receive the fugitive criminal." These are the provisions of the 
Actj and they are quite sufficient to satisfy me that the magis- 



CEIMINAL REPOETS, 1860-1907. 



249 



Re The Extra - 



CiKLO Pedbo. 
Harding J. 



trate's decision is by no means binding, either in point, of law ^^■jq 

or in point of fact, and that when these matters come to be and 1873, In re 
considered upon the habeas corptis, if the Judges have to consider 
the case, they must consider the case as it is before them at the 
time the rule is discussed ; and I think that, in considering the 
matter, though we pay respect to the magistrate's view, we are 
not bound to follow it at the expense of the criminal if, upon the 
whole state of things before us, we come to the conclusion either 
that the crime has not been committed, and that there is no 
prima facie evidence of it, or that the criminal ought not be sent 
out to his own Government for the purpose of being dealt with 
by reason of his oflEence being, though a crime, a crime of a 
poUtical character." I have no doubt that that is good law. 
The authorities collected in Paley on Extraditions, 7th Ed., 
p. 346, lay it down very clearly that, on a conviction that would 
be quashed if brought before the Court in another form of pro- 
ceedings, the prisoner cannot be detained. I am perfectly satis- 
fied that on another form of proceeding this conviction would 
not stand, but would be quashed. Consequently, the prisoner 
•cannot be detained on this conviction, but he must be remanded 
to his present keeping under an amended return of the writ. To 
make it more clear, he is to be discharged from the warrant issued 
on the conviction under The Extradition Act, and he is to be 
remanded to custody under the warrant which is mentioned in 
the amended return to the writ. My brother Judges concur, 
.and that is the judgment of the Court. 

Solicitor for prisoner : Price. 

iSohcitor for Crown : J. Howard Gill. 



[FuLi. Court.] 
BRITCHER V. WILLIAMS AND OTHERS. 

(5 Q.L.J. 39.— Note.— Sec. 27 ol the Brands Act ol 1872 is repealed, see now s. 447 

ol Criminal Code. As to causing act to be done, see-now s. 7 of Criminal 

Code.] 

Brands Act of 1872, s. 27— Admission of evidence of previous 

convictions — Practice — Costs. 

Two snmmonses were issued against B , at the Cbarleville Police Court, for 

wilfully branding with his registered brand two calves of which he was alleged not 



1893. 
April. 

Griffith C.J. 
Harding J. 
Chubh J. 
Bcal J. 



250 



QUEENSLAND JUSTICE OF THE PEACE. 



Bkitchee v. 

Williams and 

Otheeb. 



to be the rightful owner. By consent both summonses were heard as for one 
offence only. Evidence was given of previous convictions for illegally branding, 
but that, as to branding, did not show that B. had himself branded either of the 
calves, and he was convicted and fined £40 and costs. 

Held, on a motion to quash the conviction, that as the evidence of previous 
convictions had not been objected to before its admission, the conviction was not 
bad on that ground, but that the conviction must be quashed on the ground that 
the evidence did not show B. to be guilty of the offence charged. The evidence 
showed that he was present and caused the branding to be done. 

The rule was made absolute, with costs against the Crown. 

Motion for a rule absolute to quash a conviction or order made 
by John Vivian WUUams, Police Magistrate, and John Armstrong, 
Junior, at the Charleville Police Court, on the 3rd day of 
February, 1893, on a complaint wherein Herbert Hart was com' 
plainant, and Henry Samuel Britcher defendant, on the iollowing 
grounds : — (1) Wrongful admission of evidence of previous 
convictions ; (2) that the evidence did not show the defendant 
to be guilty of the offence charged ; and (3) that there was no 
evidence to support the conviction. 

Bannatyne, for Britcher ; Byrnes A.G. and Feez, for the con- 
victing magistrates, and (at a later stage) for the Crown, to 
show cause. 

Bannatyne : The evidence showed that the branding was 
done by a servant of B., assisted by his two sons. Evidence was 
admitted of previous convictions. In a criminal case, oiily 
evidence material to the issue can be allowed — Beg. v. Gibson, 
18 Q.B.D. 537. The Bench allowed the sergeant of police to 
state that there had been two previous convictions, and that, in 
the first case, the defendant had been fined £10, and the second 
£20. 

[Geiffith C.J. : We are all agreed that it was not admissible 
evidence if it was objected to.] 

[Haeding J. : It has been laid down over and over again that 
a Judge of this Court must not allow a prisoner to be convicted 
on improper evidence, and that it is the Judge's duty throughout 
the trial to protect the prisoner from improper evidence.] 

[Geiffith C.J. : Can you show that in a case of summary 
conviction before justices any conviction must fail if evidence 
is admitted which is inadmissible ?] 

^ submit that is so. There is a conflict of evidence as to 
whether the evidence was objected to. 



CRIMINAL REPORTS, 1860-1907. 



251 



[Griffith C.J. : Is there any case where a conviction has Bkitoheb «. 

not been sustained where the objection as to admissibihty of Otheks. 

evidence is made for the first time after the conviction ?] 

I do not know of any. 

[Griffith C.J. : Neither do I. In common law, if you give 
imsound reasons for the admissibility, of evidence, and the Judge 
admits it, you cannot afterwards upset the decision 071 that 
point.] 

As to the third objection. Ex parte Hop Sing, 4 N.S.W., 
W.N., 59, was cited. 

Byrnes A.G. : The appellant was only nineteen yards away 
from where the branding took place. He was practically present 
and employed an innocent person to do an illegal act. The defen- 
dant admitted in cross-examination that he had been twice 
convicted. No objection was taken to the evidence-in-chief 
at the time. The police magistrate has made an affidavit to that 
effect. 

Bannatyne, in reply, submitted there was no evidence that the 
appellant was so close to the man actually doing the branding 
that he was actually engaged in the work himself. 

Griffith C.J. : This is a motion to quash a conviction against Griffith C.J. 
Henry Samuel Britcher for illegally branding two calves, on the 
grounds (1) that evidence of previous convictions was wrongfully 
admitted ; (2) that the evidence did not show the defendant to 
be guilty of the offence charged ; and (3) that there was no evidence 
to support the conviction. As to the wrongful admission of 
evidence, affidavits have been filed that no objection was made 
at the time. I beheve that was the case, and on that ground the 
appeal fails. If justices are to be held responsible for the ad- 
mission of evidence, and if a conviction is not to hold good when 
evidence is wrongfully admitted without an objection being 
made at the time, an intolerable burden will be imposed on 
magistrates. Another objection is that the offence of which the 
defendant has been convicted is different from the one with which 
he has been charged. The defendant was charged with branding, 
and the evidence clearly showed that he caused and directed 
the branding to be done. The real question is whether under the 
circumstances he was properly charged with branding. It is not 
necessary that a man should actually do the branding himself 
to become a principal. If he were in the yard and saw the brand- 



252 



QUEENSLAND JUSTICE OP THE PEACE. 



Br.ITCHEB V. 

Williams and 
Othees. 

Griffith C J. 



Harding J. 



Chubb J. 
Eeal J. 

Griffith C.J. 



ing done, he is quite as much a principal. No alteration has heen 
made in the charge preferred against the defendant, and on that 
ground I think the order must be made absolute and the con- 
viction quashed. Costs were asked against the Crown, but I 
do not think they should be granted. 

Harding J. : I think the rule should be made absolute and the 
conviction quashed on the second ground, but I do not express 
any opinion at present with regard to the first ground of the 
appeal. The Crown has joined in the fight and supported the 
complaint, they must bear the penalty and will have to pay the 
costs. 

Chubb and Real JJ. concurred. 

Griffith C.J. : I hold the opinion that the Crown ought never 
to pay costs in criminal or quasi-criminal cases ; but perhaps 
I am prejudiced on account of having been so long a Crown Law 
Officer. 

Rule absolute with costs against the Crown. 

Solicitors for appellant : Bouchard <fc Holland. 
Solicitor for respondent : J. Howard Gill. 



1894. 
October. 

CooperJ, 
CImbb J. 



[Northern Full Court.] 
SMITH V. O'BYRNE, Ex parte O'BYRNE. 

[5 Q.L.J. 126.— Note.— See now s. 280 of Criminal Code. See also Spatkes v. 
Martin (2 Q.J.P.R. 12), Armat v. Little (3 Q.J.P.R. 21, 1909, S.B.Q. 83.)] 

Assault — Schoolmaster — Punishment of pupil — Excessive violence. 

A schoolmaster may punish for school offences, but if he exceeds the bounds of 
moderation eiliher»in the- manner, instrument, or quantity of the punishment, he is 
answerable for the excess. 

The authority and position of a schoolmaster explained. 

Motion calling upon E. J. Hennessy, John T. H. Bowden, and 
G. Massey, of Thursday Island, to show cause why a conviction 
or order made against Mary O'Byrne for a common assault upon 
one Stella Anne Smyth, whereby the said Mary O'Byrne was fined 
one penny, should not be quashed, on the ground that there was 
no evidence of excess either in the manner, instrument, or quantity 
of punishment inflicted, and why the said Mary O'Byrne should 
not recover the costs of the application. 



CEIMINA.L EEPOETS, 1860-1907. 25S 

The facts appear in the judgment of Chubb J. Smith v. o;Bybne 

^^ •" ° Ex parte O'BYRHii 

Macnaughton, for the appellant, moved the rule absolute. 

The punishment was not excessive. Archbold's Criminal Practice, 

723. The Court will review the finding of the justices. Neighbour 

V. Moore, 4 Q.L.J. 145. 

Jameson, for the justices, asked to be heard on the question 
of costs, as the magistrates had been brought into Court. 

Cooper J. : You cannot have costs. My opinion is now, as Cooper J. 
it was when I granted the rule nisi, that there was absolutely 
no evidence before the magistrates that there was excess in the 
force of the application of the instrument, or that an improper 
instrument had been used in the punishment of the child. That 
being so, the rule must be made absolute, with costs against the 
respondent and not against the magistrates. 

Chtjbb J. : As this is a matter of some importance, I have Chubb J. 
taken the opportunity since the papers have been in my possession 
to look into the authorities, and it may be useful to schoolmasters 
and others to know the law on such matters. A schoolmaster 
may, in respect of school offences, misbehaviour, disobedience, 
idleness, and the like, lawfully inflict moderate and reasonable 
corporal chastisement, commensurate with the ofiPence, upon a 
scholar capable of appreciating the punishment. If, however, 
he exceeds the bounds of moderation, either in the manner, the 
instrument, or the quantity of the punishment, the excessive 
violence is unlawful, and he is answerable to the law for that 
excess. The authorities for this doctrine will be found in 1 
Hawk. P.C, c. 60, s. 23 ; Bac Ab. (Assault and Battery) ; 1 
Hale, P.C, 473, 474 ; 1 East P.C, 406 ; Com. Dig. Pleader 
(3 M., 19) ; Stephen's Crim. Dig. (Art. 201) ; 1 Buss. Cr., 4th 
Ed., 751, 1026 ; B. v. Miles, 6 Jur. 243 ; R. v. Hopley, 2 F. & F., 
202 ; B. V. Griffin, 11 Cox CC, 402 ; and Fitzgerald v. Northcote, 4 
F. & F., 656. In Year Book, 7 Ed. IV., the position of the school- 
master is put as that of temporary guardian. In Year Book, 21 
Ed. IV., fo. 6, p. 12, there is a case of assault and battery by an 
apprentice against his master, in which appears a qucere — " if a 
schoolmaster can justify {i.e., beating a scholar), for it is not 
prejudice to him if the scholar will not take learning." Whether 
this qucere is the observation of the Judge or an addition of the 
reporter does not appear clearly. The remark seems foohsh, and 
the reason trivial. In B. v. Hopley, 2 F. & F., 202, where a 
schoolmaster was indicted for the manslaughter of a scholar, a 



254 QUEENSLAND JUSTICE OF THE PEACE. 

Smith D. 0|Byene ^^^j g^gg(j thirteen, by excessive beating with a thick stick, 
xpait^ -JENE Q^gjj|^yj,j^ Q j_ directed the jury as follows : "By the law of 
Chubb J. England a parent or a schoolmaster (who for this purpose repre- 
sents the parent and has the parental authority delegated to 
him) may, for the purpose of correcting what is evil in the child, 
inflict moderate and reasonable corporal punishment, always, 
however, with this condition — that it is moderate and reasonable. 
If it be administered for the gratification of passion or of rage, 
or if it be immoderate or excessive in its nature or degree, or if it 
be protracted beyond the child's powers of endurance, or with 
an instrument unfitted for the purpose and calculated to produce 
danger to life and limb, in all such cases the punishment is exces- 
sive, the violence is unlawful, and if evil consequences to Ufa 
or limb issue, then the person inflicting it is answerable to the 
law." In a subsequent case, Fitzgerald v. Northcote, 4 F. & P., 
()56, the same learned Judge says : " The authority of the school- 
master is, while it exists, the same as that of the parent. A 
parent, when he places his child with a schoolmaster, delegates 
to him all his own authority, so far as it is necessary for the weKare 
of the child." In both these oases, it may be noticed in passing, 
the scholars were boarders ; and in B. v. Hopley the master, before 
inflicting the punishment, had written to the boy's father pro- 
posing to give the boy a severe beating, and had received the 
father's assent thereto. In this case the appellant, the head 
mistress of the primary school at Thursday Island, punished, in 
open school, a girl day scholar, aged nine years, for continued 
neglect of home lessons, after previous warning and punishment. 
The punishment consisted of four strokes of a cane, described in the 
evidence as of about the thickness of a boy's little finger. Two 
of the strokes were on the right hand, one on the left, and the 
fourth on the left forearm, two inches above the wrist. It is 
apparently this last stroke that is complained of — the cau^a 
teterrima belli. A medical expert, Dr. Salter, who saw the injury 
on the same day and shortly after it was afflicted, deposed that 
there was a slightly raised mark above the wrist, that he did not 
think the child would suffer from it, and that it was nothing 
serious, but that it might have led to a serious injury as regards 
muscular action, and that in his opinion (in which I quite agree) 
■' on the wrist is not a fit place to cane a child." The evidence 
of the child and her juvenile brother was that she had her hand 
out perfectly still — leading to the inference that the blow on the 
wrist was intentional. If this were so, and the justices on reason- 



CRIMINAL REPORTS, 1860-1907. 255 

able evidence came to that opinion, and also to the opinion that Smith -j. O'Bybne 
,1 TIT o ■ , , , . „ , Ex paric O'Bybne 
there had been an excess of violence, then their finding on the 

facts ought not to be disturbed by this Court, and the conviction Chubb J. 
ought to be sustained. Then was there any reasonable evidence 
of an unlawful battery ? The act of correction was lawful in 
itself. It could only become unlawful by and in respect of an 
excess. To make it an offence punishable by the criminal law 
the battery must have been intentional as well as excessive. If, 
therefore, the stroke on the wrist was unintentional and happened 
by misadventure, or was caused by the child's own fault, then it 
was no battery. There is no necessity to cite authorities for this 
elementary proposition. Now the evidence of the appellant and 
three of the school children was that the stroke on the wrist was 
occasioned by the child swerving her hand as the cane descended. 
Looking at the whole of the evidence and to the fact that there 
was no evidence of anger or improper feeling shown by the 
appellant, or of cruelty either by use of an improper instrument 
for punishment or by the infliction of an excessive number of 
strokes, I, as a judge of fact, would have been prepared to accept 
the appellant's version of the affair as the true one, not only on 
the weight of evidence, but because I cannot bring myself to the 
belief that the appellant deliberately and cruelly struck intention- 
ally at the child's wrist. The three justices, however, who heard 
the case have come to that conclusion, necessarily disbelieving 
the appellant's story, and declining to accept her explanation. 
Then, with regard to the injury itself, it was stated to be " nothing 
serious " — the child did not cease attending school in consequence 
— and that it was of the most trifling character is indicated by 
the fine of the penny inflicted by the justices. I may say, how- 
ever, that I do not for a moment doubt that the justices came to 
that conclusion in perfect good faith. Now this Court will 
review the finding of justices, even upon the facts where it appears 
that they have, in our opinion, taken an unreasonable view of 
the evidence, and. the interests of justice require it. Neighbour 
V. Moore, 4 Q.L.J. 145, p. 14, per Lilley C.J. I have no hesita- 
tion in saying that I can myself see nothing to justify the infliction 
of even the nominal fine imposed on the appellant. In my 
opinion the correction was lawful — it was moderate, reasonable, 
and inflicted with a proper instrument. There was no excess, 
as the blow on the wrist was, I think, a misadventure, and in any 
case, was of no serious consequence. The justices should, there- 
fore, I think, have dismissed the complaint. The conviction 



256 QUEENSLAND JUSTICE OF THE PEACE. 

Smith v. 0|Bybne therefore must be quashed, and the fine and costs paid by the 
*^'"_!_ ^ ''"^ appellant returned to her. Costs against the respondent. No 
Chubb J. pQgtg against the magistrates. 

Solicitors for appellant : Roberts <k Leu. 

Solicitor for magistrates : T. G. Fraser, Crown Solicitor. 



1894. 

Fehrvary. 



[Full Coubt.] 

REGINA V. JACK. 

Q.L.J. 60. — Note. — 29 Vic, No. 13, ss. 48, 51, are repealed, see now s. 668 of 
Criminal Code. Instead ol Order XXXI., r. 4, ol Crown Rules, see now Criminal 
Practice Rules, 0. IX., r. 3, Wilson & Graham's Code, p. 398. 55 Vic, No. 24, 
s. 4, is repealed, see now s. 212 of Criminal Code. Compare also s. 584 of 
Criminal Code.] 



Criminal Practice Act of 1865 (29 Vic, No. 13), ss. 48, 51—0. 
XXXI., r. 4 — Appeal — Criminal Law Amendment Act of 1891 
Griffith G.J. (55 yic.^ No. 24), s. 4 — Limitation of time — Arrest. 

Harding J. 

Seal J. As a general rule, a Crown Case Eeserved for the opinion of the Supreme Court 

will not be heard unless the papers are delivered to the Judges four clear days 
before the hearing, as prescribed by the Order XXXI., r. 4 (Grown Rules). 

When a man is apprehended on a charge of an oHence the nature of which is 
such that upon an information charging him with it he might be convicted of the 
offence with which he is actually charged in the information, that apprehension is 
a commencement of the prosecution for the latter offence. 

On a charge of an offence under s. 4 of The Criminal Law Amendment Act of 
1891, proof by parol that the prisoner was apprehended on a charge, then stated to 
him, of rape on the same person, held sufficient evidence of the commencement of 
the prosecution. 

JR. V. Phillips (E. & E. 369) explained. 

Case stated for the opinion of the Court by Miller D.C.J. 

The prisoner, an aboriginal, was tried at the Criminal Sittings 
of the District Court, at Rockhampton, on 9th January last, on 
a charge of attempted rape on a girl aged 4J years. At the close 
of the evidence, which went to show that the offence was com- 
mitted on 9th November, Mr. Lilley, who appeared for the prisoner, 
asked the judge to direct the jury to bring in a verdict of not 
guilty, on the ground that there was no evidence that the prose- 
cution was commenced within two months of the commission of 
the offence. His Honour, in stating the case, said that the only 
evidence of the commencement of the prosecution was that of 



CRIMINAL REPORTS, 1860-1907. 257 

the arresting constable, who deposed that he arrested the prisoner Bbqika v. Jack. 

on the 9th November on a charge of rape committed on the girl. 

No warrant or information was used in the initiatory proceedings, 

or produced or tendered in Court. At the Crown Prosecutor's 

request, His Honour allowed the case to go to the jury, and 

reserved the point for the Full Court. Prisoner was convicted, 

and His Honour remanded him for sentence until the next sittings 

of the District Court in Rockhampton, and in the meantime 

committed him to prison, allowing him bail if he could obtain it. 

The points for the consideration of the Court were : (1) Is it 

necessary for the Crown to prove in an offence under The Criminal 

Law Amendment Act of 1891 that the prosecution was commenced 

within two months after the commission of the offence ? (2) Was 

the evidence of the arresting constable sufficient to prove the date 

of the commencement of the prosecution ? 

Byrnes A.G., and King for the Crown. 
Lilley for the prisoner. 

Griffith C.J. pointed out that the papers had not been de- 
livered four days before the sitting of the Court. 

Lilley : I understand the jiidge who tried the case has been 
away on circuit, and the preparation of the case delayed. I ask 
the Court to waive the rule in this instance. 

Griffith C.J. : Order 31, rule 4, provides that when a question 
is reserved by a Court of Criminal Jurisdiction for the Supreme 
Court the case is to be delivered to the Registrar, and that the 
Registrar, or if the question was reserved on the application of 
the prisoner's counsel, the prisoner, must cause office copies of the 
case to be delivered to the Judges and to each party four days at 
least before the case is to be heard. The object of the rule, of 
course, is that in a matter involving the liberty of the subject 
the Judges may have an opportunity of reading the case at their 
leisure, and considering the points for decision before the argu- 
ment. That being so, the rule ought to be observed unless satis- 
factory reason is given for the default in the delivery of the copies. 
In the present case the papers came direct from the Judge, and it 
is to be presumed that he used all expedition in the matter, and 
in any case the parties ought not to suffer for any want of ex- 
pedition on the part of the Judge. As the question involves the 
liberty of the subject, I think we ought to hear the case, but it 
should be understood that as an ordinary rule cases will not be 



258 QUEENSLAND JUSTICE OF THE PEACE. 

Eeoina V, Jack, heard unless the papers are delivered to the Judges four clear 
days before the case comes on for hearing. 

Lilley submitted that there was no evidence of the date on 
which the prisoner was first brought before the justices. He was 
arrested on a charge of rape, and there was no evidence that the 
prosecution was commenced until 9th January, when an informa- 
tion was presented in the District Court for an attempted rape. 
The arrest is not the commencement of the prosecution. R. v. 
Phillips, R. & R. 369 ; R. v. Parker, 33 L.J. (M.C.) 135. Laying 
an information is the commencement of the prosecution. It is 
not always necessary to have a %vritten information. S. 42 of 
The Justices Act says proceedings are to be commenced by a 
complaint. There was no evidence that the proceedings were 
commenced in that way. In R. v. Hull, 2 F. & F. 16, it was held 
that the issue of a warrant was not evidence of the commencement 
of the prosecution. R. v. Brooks, 2 C. & K. 402 ; 1 East, P.O., 
186. The arrest was simply the detention of the person for the 
safety of the pubUc. The prosecution commenced with the pro- 
ceedings in Court. 

King contended that the oims was on the prisoner to prove 
that the prosecution had not been properly initiated. The Crown 
Prosecutors must be presumed to have performed their duties 
properly until the contrary was proved. 

[Griffith C.J. : I am not acquainted with any such rule.] 

The arrest is a step in the prosecution, and consequently the 
prosecution was commenced within the time prescribed by the Act. 

Lilley in reply : The arrest might be a step in the prosecution, 
but it is no part of it. Austin v. Dowling, L.R. 5 C.P. 534. 

" ' ■ Gkiffith C.J. : The prisoner was charged, under the 4th sec- 

tion of Th^ Criminal Law Amendment Act of 1891, with attempting 
to commit an ofience upon a girl under the age of 12 years. That 
section provides that any prosecution for any offence under it 
must be commenced within two months after the commission of 
the offence. It was contended by Mr. King that the onus was 
on the prisoner to show that the prosecution had been begun after 
the two months, but all the cases referred to were to the contrary 
effect. The general principle laid down is that the information 
must disclose the committal of an offence within the cognisance 
of the Court both as to time and place. It appears, however, 
that under such statutes it is not necessary to allege in the inform- 
ation the date of the commencement of the prosecution, but it 



CKIMINAL REPORTS, 1860-1907. 



259 



also appears that when an objection has been taken that the 
prosecution had not been commenced within the prescribed time, 
•effect has been given to it. The evidence as to the commencement 
■of the prosecution in this case is this : — Within six days after the 
offence was committed, the prisoner was arrested by a constable, 
who informed him that it was for an offence, which he described 
as rape, upon the child on whom the offence was committed. It 
was suggested that the offence, of which he was ultimately con- 
victed, was not that on which he was arrested, but that difference 
•does not constitute any objection if the prosecution was com- 
menced within the prescribed time. It may be taken, therefore, 
that if the arrest of the prisoner on that charge was the com- 
mencement of the prosecution for the offence of which he was 
■convicted, the prosecution was commenced in sufficient time. 
The contention for the prisoner was substantially that a prosecu- 
tion must be commenced by laying a complaint before a justice, 
and that the apprehension of a prisoner on a charge communicated 
to him by the constable is no evidence of a previous complaint 
before a justice, nor of itself a commencement of the prosecution, 
nor a step in the prosecution. If that proposition were sustained, 
the conviction would have to be quashed. Consider the object 
■of the statute. The offence is one which is easily charged, and 
substantial proof of which is soon lost, and it has often been said 
that it is hard to disprove. The object of this provision is to 
prevent stale charges, and to make the prosecution follow as soon 
as possible on the commission of the offence. What, then, is the 
meaning of " the commencement of the prosecution " ? If we 
are bound by any decisions to hold that the term " prosecution " 
is a term of art having a technical meaning, we must follow those 
decisions. But the cases that have been cited do not appear to 
me to lay down any strict or technical interpretation of the term 
" prosecution." The earliest case was that in East's Pleas of the, 
■Grown. Then came the case of R. v. Phillips in Russell and Ryan. 
In the days when those cases were heard there was no Court for 
dealing with Crown cases reserved, but it was the practice for the 
judges to consult together and to make a recommendation to the 
■Secretary for State if they thought that a conviction should not 
be upheld. The words " commencement of the prosecution," 
used in the Queensland Act, are words often used in old statutes, 
and in construing their meaning regard must be had to what was 
the law about the commencement of prosecutions in those days. 
In 2 Hale's Pleas of the Grown, p. 72, it is said : " Touching their 



Reoima v. Jack. 
Griffith O.J. 



260 



QUEENSLAND JUSTICE OF THE PEACE. 



Begina v. Jack. 
Griffith C.J. 



Harding J. 
Keal J. 



arrests or apprehending them " (i.e., offenders), " this is the first 
instance " (i.e., beginning) " of their prosecution." The olcJ 
doctrine of hue and cry is an illustration of the fact that the 
ordinary way in which a prosecution was commenced was by 
apprehension of the offender. I think, then, that we may very 
well understand that the Legislature when in the old statutes 
they used the term " prosecution " used it with reference to what 
was then understood to be the ordinary means of bringing an 
offender to justice, and that we are not precluded from holding 
that under this statute also the arrest was the beginning of th& 
prosecution. That seems to be the oridnary meaning of the term, 
and this construction appears to be supported by the older author- 
ities. The case of B. v. Phillips, R. & R., 369, was relied on as 
authority against this view. The marginal note of that case is, 
" Proof by parol that the prisoner was apprehended for treason 
respecting the coin within the three months will not be sufficient, 
&c." On looking into the report itself, however, it appears that 
the head-note is inaccurate. The prisoner was apprehended on 
a charge of " high treason." At that time certain offences- 
against the coinage law were made high treason by statute. All 
that the Court decided was that evidence of apprehension upon a 
charge of " high treason " generally was not sufficient evidence 
that the prisoner was apprehended for the offence against the 
coinage laws for which he was indicted. It appears in the present 
case that within two months of the committal of the offence the 
offender was arrested on the charge of rape on the same child. I 
think that it was a fair inference that he remained in custody on 
that charge until brought before the jury and convicted. It 
seems to me, therefore, that there was sufficient evidence that 
the prosecution was commenced, in the sense in which the term is 
used in the statute, within the time prescribed. On the grounds 
that I have stated, I think the conviction ought to be affirmed. 

Habdikg and Real JJ. concurred. 

Solicitors for prisoner : Chambers, Bruce <Ss McNab. 



CRIMINAL REPORTS, 1860-1907. 



261 



[Full Court.] 

REGINA V. MANGIN. 

16 Q.L.J. 63.— Note.— 31 Vic, No. 13, s. 64, is repealed, see now s. 10 of Criminal 
Law Amendment Act of 1894 (58 Vic, No. 23) not identical.] 

Criminal law — Evidence and Discovery Act (31 Vic, No. 13), 
s. 64 — Untrue representation — Confession. 

M. was charged with having stolen certain gold, the property of the Mount 
Morgan Company. G., a private detective, who had worked himself into M.'s 
•confidence gave evidence that he told M. that he came from S. Africa, and had 
done business in diamonds, where a fellow could make a little money if he were so 
inclined. M. replied, "a man can make a little money here if he goes the right 
way about it." G. then, by means of false statements, induced M., by promising 
io participate in the gold robberies, to admit that he had in his possession some 
gold scraped from the Company's retorts. The statements were admitted to be 
false. The evidence was admitted, and the prisoner convicted. 

Held, by Harding and Beal JJ. , that these representations being untrue, and 
being made after the subject matter of the charge had been taken, all subsequent 
material confessions of M. were inadmissible in evidence, as being induced by such 
false statements, and that the conviction must be annulled. 

Case stated for the consideration of the Court by Miller D.C.J. 

The prisoner, Reuben Mangin, was tried in Rockhampton for 
having on the lith September last, at Mount Morgan, stolen 
loz. lOdwt. of gold, the property of the Mount Morgan Company, 
and for having on the 20th of the same month, also at Mount 
Morgan, stolen 18oz. of amalgam and 2 oz. 19 dwt. 18gr. of gold 
belonging to the Company. He was convicted on both counts. 
The principal witness against him was F. W. Gabriel, a private 
•detective employed by the Company. Gabriel had lived at the 
same hotel as the prisoner, and had by gradually working himself 
into the prisoner's confidence gained sufficient evidence to 
associate him with the gold steahng. In the course of the trial 
he gave evidence, in which he stated that on the 7th September 
lie had a conversation with Mangin, who asked him where he 
■came from. By that time he was on familiar terms with Mangin. 
Gabriel said that he came from South Africa, where he had been 
■doing a little business among the diamonds, and where a fellow 
could make a little money if he were so incHned. That statement 
he said in the witness-box was untrue, inasmuch as he had done 
business in diamonds, but not in South Africa. He continued 
to say that Mangin repHed that—" A man can make a little 
money here if he goes the right way about it," and described 
how by representing himself to Mangin as a man who would 



1894. 
February. 

Harding J. 
Real J. 



262 QUEENSLAND JUSTICE OP THE PEACE. 

Regina v. Mangin participate in the gold robberies, he had induced him to admit that 
some gold in Mangin's possession had actually been scraped out 
of the retort at Mount Morgan. On Gabriel giving this evidence, 
Mr. Lilley, who was appearing for the prisoner, submitted that 
under the 64th section of The Evidence Act, the evidence was 
inadmissible, inasmuch as the admissions from the prisoner were 
induced by untrue representations. A note of the point was taken 
by the Judge, and it was now brought under the notice of the 
Court on the special case stated by His Honour. 

Lilley, for the prisoner : Section 64 of The Evidence ani 
Discovery Act is pecuhar to Queensland. The only decision on it 
is R. V. Horrocks, 4 Q.L.J. 218. The representation was untrue,, 
and admitted by Gabriel to have been made to secure the 
prisoner's confidence. The ownership of the gold was not 
properly proved. There was no evidence, apart from the con- 
fessions, that the gold ^^as taken without the consent of the- 
directors. R. v. Meehan, 8 S.C.R. (N.S.W.) 289 ; R. v. Thomfson 
(1893), 2 Q.B., 12 ; R. v. Windsor, 4 F. & F. 361 ; Rex v. ParralL 
4 C. & P. 570. 

Byrnes A.6., Power and King, for the Crown : The section 
does not apply to admissions made before there was any charge. 
Gabriel was a private of&cer, not a person in authority. The 
term " untrue representation " must be interpreted to mean 
any misrepresentation in connection with the offence Avith which 
the man is actually charged. 

HardiDg J. Haeding J. : This is a case stated by the learned Judge who 

presided in the criminal side of the District Court holden at Rook- 
hampton on 16th January last. The prisoner, Reuben Mangiii,, 
was on that day charged with the larceny of 1 oz. 10 dwt. of gold, 
and the larceny of 18 oz. of amalgam and 2 oz.. 19 dwt. of gold, 
said to be the property of the Mount Morgan Gold Mining Com- 
pany Limited. The case shows that, unless by means of admis- 
sions made by the prisoner, the case was not proved against him. 
The point more particularly raised by this case is as to the untrue 
statement which is said to have been made by Gabriel to the 
prisoner before the taking of the goods alleged to have been stolen. 
That statement was to the effect that he came from South Africa, 
and that he had been there doing a little business among the 
diamond fields. Now, nothing of the kind had ever occurred.. 
Mr. Lilley objected to that. It was subsequent to that that the 
alleged confessions were made, upon which alone the conviction 



CRIMINAL EEPORTS, 1860-1907. 263 

can be sustained. The learned Judge states that there was no Kegina v. Mansin 
evidence or confession made by the prisoner to Gabriel after the Harding J. 
untrue representation rightly admissible. The case does not set 
out other untrue statements made by Gabriel to the prisoner, 
but it attaches as part of the case the notes of the evidence, and 
from these there appears to have been a false statement made by 
Gabriel to the prisoner material to a prosecution, subsequently 
to that which took place with respect to the gold, which had been 
then taken and was then in the possession of the prisoner. Now, 
these facts being incorporated with the case, the second question 
raised by the Judge — Was there any evidence that the property 
was taken without the consent of the owners ? — arises. If that 
part of the evidence is read into the case, then this question raises 
that point — Was there any evidence that the property was taken 
without the consent of the owners ? — because it is only by means 
of confessions, after such false statements as I have indicated has 
been made, that any such evidence was brought out at aU. So 
that I think that the point is open to us without deciding whether 
or no this statement about the diamonds so long before the occur- 
rence could vitiate the matter, or be a good reason for reversing 
the judgment. Now, certain misstatements, which I do not find 
it necessary for a decision to point out, having been made by 
Gabriel to the prisoner, a certain amount of confidence having been 
estabhshed between the two, and arrangements having been made 
between them that they should obtain substances which are 
retortable into gold from the Company — that being the case, 
and substances having been actually obtained by the prisoner, 
this occurred :— On Wednesday, Gabriel says he saw Mangin 
at the hotel : " I produced some notes. I went into his bedroom. 
He showed me some pieces of what I took to be gold, which he 
said he had obtained from the pipe of the retort. He put them 
into a small box which I gave him. He also showed me a 
pocket, which had been cut out of a pair of trousers, with 
some amalgam in it, weighing about 18 oz. or 20 oz. I told 
him he was getting some more gold. We then went into the 
bar." " I told him I was getting some more gold " — a false state- 
ment. " We went into the bar, and there met William Russell. 
All three of us went into Mangin's bedroom. On the Avay to the 
bedroom Mangin said, ' Are you sure Russell is aU right ? ' I said, 
' Yes.' " That is not true. There is a further misstatement. 
I think that after that, at all events, all statements made by the 
prisoner were affected by those untrue representations. " After 



264 QUEENSLAND JUSTICE OF THE PEACE. 

Kegina v. Manoin this they went into the bedroom, and he (Mangin) produced a bag 
Harding J containing amalgam, and asked Eussell to feel the weight of it." 
There is a confession that he had in his possession amalgam. 
" There was some conversation which I don't recollect. We went 
into the bar and had a drink. Eussell left. Mangin then said 
if I had been here two months ago we could have made a 
couple of thousand pounds a month." There is another con- 
fession, if the jury put a certain construction on it. Further 
on we find he says : " Going through the bar we found a man 
lying across the gateway named Joyce. He was drunk. I said, 
' You can't have him here ; take him into Mangin's room.' 
Mangin said, ' Do you think this fool is shadowing us ? ' " There 
is another confession — that is, if the jury chose to draw a certain 
conclusion from it. " I replied, ' It might be.' Mangin said, 
' I will give you my swag to take care of to-night.' " There is 
another confession. " I saw Mangin at Mills' Hotel on the 
21st (Thursday), and he showed me a piece of metal which he said 
was stuff taken from the retort." Then there is other evidence to 
the same effect. As I have already said, that amounts to the 
making of a representation by Gabriel pertinent to the matter after 
the subject matter of the charge had been taken and the crime 
committed and completed, whatever it was. That being so, 
I think that the learned Judge below was right when he did not 
think the evidence was admissible, but he admitted it on pressure 
from the Crown, subject to a case to be reserved. I think the 
evidence was wrongly admitted, and consequently that any 
conviction which followed upon it was bad. The form of the 
order should be that the judgment be annulled, and an entry be 
made on the record and on the indictment that the prisoner 
ought not, in the judgment of the Judges, to have been convicted 
of the felony aforesaid. 

Eeal J. Real J. ; I am of the same opinion. The whole of the state- 

ments were made before any material admission had been obtained. 
All the representations Avere made by Gabriel before he got one 
very material admission — that he (Mangin) took it without the 
consent of the directors. That is the last thing of all. He appears 
to have held his hand until he got that admission out of him, 
and immediately after he had got it he handed him over to the 
pohce. That appears to have been on the 21st, on which day 
Mangin told him he would have got more, but the directors were 
there, and he could not get as much as he liked. The next morning 
Gabriel gave him into custody. All the representations were 



CRIMINAL REPORTS, 1860-1907. 



205 



made before he got that admission, and that is material evidence i^'^'ginau. Mangin 

relied upon in the case, as showing the taking of the property Real J. 

without the consent of the directors. We cannot see how far the 

jury rehed upon that, but that alone would be sufficient to render 

the conviction bad. For the same reasons as those given by my 

brother Harding, I am of opinion that the judgment should be 

annulled. 



Haeding J. : Let the prisoner be discharged, and an entry 
made on the record and on the indictment that the prisoner 
ought not, in the judgment of the Judges, to have been convicted 
of the felony aforesaid. 

Solicitors : Chambers, Bruce dh McNab. 



Harding J. 



[Full Couet.] 
REGINA V. BUNNEY. 

[6 Q.L.J. 80.— Note.— See now s. 297 ot Criminal Code. Sec. 49 of Criminal 
Piactice Act, 1865, Is repealed, see now s. 688 of Criminal Code. Offenders' 
Probation Act of 1886 is repealed, see now s. 656 of Criminal Code.] 

Crown case reserved — Manslaughter — Contributory negligence. 

Where the death of a person is caused by the culpable negligence of the 
prisoner, the fact that the deceased could have escaped by the exercise of 
reasonable care is no answer to a charge of manslaughter. 

Crown Case Reserved by His Honour the Chief Justice, 
under s. 49 of The Criminal Practice Act, 1865. 

The case stated that Frederick Bunney was tried at the Brisbane 
■Criminal Sittings, held on the 12th March, on a charge of the 
manslaughter of John Plastow. The alleged unlawful act or 
omission causing death was culpable negligence in driving a 
■spring cart along a public highway. It appeared from the evi- 
dence that Plastow, who was an aged and somewhat infirm man, 
. and who habitually walked with the aid of a stick, was run over 
■on a clear, starlight night in the middle of the road by a spring- 
cart which was being driven by the prisoner in the opposite 
•direction to that in which Plastow was walking when last seen 
■alive, a few minutes before the collision. There was sufficient 
■evidence that Plastow' s death resulted from culpable negUgence 
on the part of the prisoner. For the defence it was suggested that 



1894. 

April 

Griffith G.J. 
Chubb J. 
Real J. 



266 QUEENSLAND JUSTICE OF THE PEACE. 

Eegina r. Bonnet the deceased was under the influence of Uquor, and had by his own 
~ negUgence contributed to the injury which was the cause of death- 

Evidence tendered to establish this defence was objected to by 
the Crown Prosecutor, but admitted as being relevant to the 
question of the degree of the prisoner's negligence, the learned 
Judge stating that he would put a specific question to the jury 
as to the existence of contributory negligence, of which there 
was some slight evidence. Two questions were accordingly put 
to the jury : — 1. Was Plastow's death caused by the culpable 
negligence of the prisoner ? 2. Was there contributory neghgence 
on Plastow's part ? both of which questions they answered in the 
affirmative. - It was contended by the prisoner's counsel that 
these findings amounted to a verdict of not guilty, but Griffith C.J. 
directed the jury, following the cases of B. v. Swindall, 2 C. & K., 
230 ; R. y. Hutchinson, 9 Cox, 555 ; E. v. Jones, 11 Cox, 544; 
and JR. v. Kew, 12 Cox, 355, that upon the findings they should 
find the prisoner guilty, which they accordingly did. At the 
request of the prisoner's counsel he reserved for the opinion of 
the Supreme Court the question whether he ought to have directed 
the jury to find a verdict of not guilty. The question for the 
Court was whether he was right in directing the jury that on the 
facts as found by them the prisoner was guilty of manslaughteir 
or whether he ought to have directed a verdict of not guilty. His 
Honour sentenced the prisoner to four months' imprisonment 
in Brisbane Gaol, but suspended the execution of the sentence 
under The Offenders' Probation Act of 1886, and prisoner had 
been discharged from custody upon recognisances under the 
provisions of that Act. 

Sydes, for the prisoner, cited Beven on Negligence, 128 ; E. v. 
Birchall, 4 F. & F., 1087 ; R. v. Hutchinson, 9 Cox, 555 ; R. v. 
Mastin, 6 C & P., 396. 

Power, for the Crown, was not called upon. 

Chubb J. Chubb J. : In this case the prisoner was charged with the 

manslaughter of one Plastow, and the manslaughter was alleged 
and proved to have been caused by the culpable negligence of 
the prisoner. Two questions were put to the jury on the point 
raised by the prisoner's counsel as to whether contributory 
negligence would be a defence to a charge of manslaughter by 
negligence. The jury in answering the first question found that 
the deceased's death was caused by the culpable negligence of the 
prisoner. That would be sufficient, if it stood by itself, to support 



CRIMINAL REPORTS, 1860-1907. 



267 



the case for the Crown. The second question asked was whether Eegina^.Bunney: 
there was contributory negUgence on Plastow's part. The chTbb J. 
difficulty which might perhaps have arisen on that question has 
been disposed of by the admission made by Mr. Sydes, that this 
question was to be understood to mean, and was so put to the jury 
— was it possible by the exercise of reasonable care for the deceased 
to have got out of the way ? If the jury had answered the 
question in that form affimatively it would not have been an 
answer. It would not be an answer in a civil case, and it certainly 
would not be an answer in a criminal case. A definition of 
contributory negligence will be found in Smith on the Law of 
Negligence, at page 227 — " Contributory negligence in law is that 
sort of negUgence which, being a cause of injury, is of such a 
character that the defendant could not avoid the effects of it." 
Then he goes on to say, " When the plaintiff has proved, according 
to his evidence, that the act of the defendant has caused the injury 
of which he complains, the defendant in his turn may prove 
that the plaintiff, by his own act, contributed to cavise the injury, 
and that the plaintiff might by the exercise of ordinary care have 
avoided the consequences of the defendant's negligence. But 
such proof is not of itself sufficient to destroy the plaintiff's claim, 
and the defendant must go further and show that the plaintiff's 
negligence was of such a character that the exercise of ordinary 
care upon the defendant's part would not have prevented the 
plaintiff's negligent act from causing the injury — that is the 
sort of negligence ^^hich the law calls ' contributory negligence.' " 
Now, in the case stated by the learned Chief Justice, it was stated 
that there was sufficient evidence that Plastow's death resulted 
from culpable negligence on the part of the prisoner. His Honour 
further said there was some slight evidence as to the existence of 
contributory negligence. That must be understood to mean 
s Dme slight evidence that possibly deceased might have got out of 
the way. As I have said before, that would not be an answer in a 
ci^-il action, and it could not be taken to be an answer to an 
information for causing the death by negligence of a fellow-creature. 
It is possible, though I do not decide it now, that the defendant 
would have been entitled to acquittal if he could have shown 
that he could not have got out of the, way by the exercise of reason- 
able care, but on the case as it stands I think the conviction was 
right, and that the judgment ought to be affirmed. 

Real J. : I am of the same opinion. I think that although it 
may be that the contributory negligence which would free a man 



Eeal X- 



268 QUEENSLAND JUSTICE OP THE PEACE. 

Begina i;. BuNNEY from civil liability would also free him from criminal liability, 
Real J. that would be merely a coincidence. It would not free a man 

from criminal liability simply because it freed him from civil 
liability. In all the criminal cases cited by Mr. Sydes, except 
one, the defence would not give protection in the Civil Court. 
In the present case it was manifest that it was the negligence of 
the prisoner that caused the injury, not the subsequent act of 
negligence on the part of the deceased — as in the case of a man 
stopping in front of a runaway engine. The injury there would 
be due to the negligence of the deceased, because he would know 
that it was out of the power of the engine-driver to stop the 
engine, and still deliberately stopped in front of the engine. 
In that case the jury would answer " no " to the question, 
was the injury caused by the culpable negligence of the driver ? 
The best test seems to be, was the injury or death caused by the 
culpable negUgence of the prisoner. If it were, it seems to me 
that the liability would be there. It seems to me also, as has been 
pointed out by Mr. Justice Chubb, that, looking at the definition 
that has been given in civil cases, the circumstances of this par- 
ticular case were such that there would be no relief from civil 
liability. All that was alleged in this case was that the deceased, 
had he been vigilant or had he been watchful, would have been 
able to see something which would have enabled him to get out 
of the way ; but, as I understood counsel, it was proved, and it 
was relied on, to show that deceased was negligent, that he was 
in the habit of walking looking down, and it was also alleged that 
he was in a state which would preclude him from exercising that 
observation. That being so, it is perfectly clear that the second 
part of the definition with regard to civil liability would not have 
been applied to that. It might be that he was guilty of negUgence 
in placing himself in that state, but that was not an act of neglig- 
ence causing death or injury whatsoever had prisoner taken 
ordinary care. So that even if the definition of negligence which 
Mould involve criminal liability is to be taken to be precisely the 
same as that which involves civil liability, there would still be no 
relief of liability in this case, and the conviction would have to be 
affirmed. Of course I do not say whether it is or is not the same. 
It seems to me that if it is the same it is only a coincidence, and 
criminal liability is not to be measured by the civil liability, 
although it might possibly be that the two ran precisely in the 
same lines on some occasions. 

-Griffith C.J. Griffith G.J. : I am of the same opinion. An attempt was 



CRIMINAL REPORTS, 1860-1907. 



2G9 



made at the trial to set up that the rules relating to civil actions BbQ'na t). BnuNEY 
for negUgence appUed to a prosecution for manslaughter. In Griffith C.J. 
deciding, as I did, I followed the authorities, which, with one 
exception, and that only the dictum of a very learned Judge, 
were all to the contrary. I am of opinion that the principles 
which would excuse the defendant in an action for negligence are 
not the principles which should apply in considering whether the 
prisoner was guilty of manslaughter. I entirely agree with Mr. 
Justice Real that, though it might sometimes happen that a man 
would be free from both criminal and civil liability, it by no means 
follows that he would be free from criminal liabiUty because he 
was free from civil responsibility. I am of opinion that the ques- 
tion of contributory neghgence was entirely irrelevant, and that 
the real question to be tried by the jury was — was the death 
caused by the culpable negligence of the prisoner ? In consider- 
ing that, I thought that the evidence relied upon as showing 
contributory neghgence was admissible, though irrelevant as 
raising a substantive defence in respect of negUgence. I think 
that that is perhaps not the best term to be used, but I used it as 
the term employed in the cases cited. I think a better word 
might be used, if it were necessary to leave the question to the 
jury, but apparently it was not necessary to do so. The con- 
viction will be affirmed. 

SoUcitor : J. B. Price. 



[Full Cottet.] 
REGINA V. HOUSTON. 

[6 Q.L.J. 145.— Note.— 54 Vic, No. 5, is repealed, see now s. 1 of Code, definition 
of " clerli or servant," and ss. 568 (1) and 641 of Code. 36 Vie., No. 8, s. 1, 
is repealed, see now s. 396 of Criminal Code. As to sentence on Crown Case 
Reserved, see now s. 668 of Criminal Code.] 

Crown case reserved — Embezzlement — General deficiency — 54 Vic, 
No. 5—36 Vic, No. 8, s. 1 — Respite of sentence. 

A member and paid secretary of an Oddfellows' Lodge may be convicted of 
embezzling sums of money, the property of the lodge. 

On a-oharge of embezzling specific sums, evidence of a general deficiency in the 
accounts is admissible. 

SemUe, that, when a prisoner is convicted, and a case reserved fov the opinion 



1894. 
itigust. 

Griffith C.J. 
Harding J. 
Real J. 



270 



QUEENSLAND JUSTICE OP THE PEACE. 



Kegina v. o£ the Full Court, the sentence should either be respited or bail allowed until 

Houston. judgment is given. 

Crown Case Resbeved by Noel D.C.J, for the opinion of the 
Court on certain points raised in the course of the trial of Robert 
James Houston, at Cooktown, on 1st June last. Prisoner was a 
member, and the paid secretary, of the Loyal Captain Cook 
Oddfellows' Lodge, Cooktown. He was charged in three separate 
counts with embezzling specific sums of money, the property of the 
lodge. He was tried, found guilty, and sentenced to three years' 
penal servitude. The questions submitted to the Court were 
whether the Judge was right in admitting in re-examination 
evidence as to a general deficiency in the accounts, the prisoner 
being charged with the embezzlement of specific sums ; and 
whether, being a member of the lodge, the prisoner could be 
convicted of embezzlement of its funds. 

Harding J. pointed out that authority was given in the Act 
to either respite or postpone sentence pending an appeal. That 
power had not been exercised in this case, and it seemed to him 
that if the same course was always followed a man might be made 
to serve a sentence when the point to be decided was whether he 
was guilty or not. 

Dickson for the Crown. 

■Griffith C.J. Griffith C.J. : The first point raised in the case is whether 

evidence of a general deficiency is admissible on a charge of 
embezzling a specific sum. In this case evidence of a general 
deficiency ^vas tendered in the examination-in-chief and rejected 
by the learned Judge, btit afterwards admitted in re-examination. 
Whether, if the evidence had been properly rejected in chief, it 
could under the circumstances have been admitted in re-examina- 
tion is a matter on which I express no opinion. But I know of 
no authority for holding that evidence of a general deficiency is 
not admissible in chief on a charge of embezzlement. I do not 
know of any authority to that effect, even before The. Act of 
1890 ; and since that Act it is quite clear that a man may be 
■convicted on evidence of a general deficiency. The other point 
is, that prisoner, being a member of the lodge, could not be 
convicted of embezzlement of the funds. That is expressly met 
by The Act of 1872, which provides that a person who, being 
one of two or more beneficial owners of money, steals it, may be 
convicted as if he had not been a beneficial owner. And that has 
been held to apply to the case of a secretary of a joint stock com- 



CRIMINAL REPORTS, 1860-1907. 



271 



pany although he himself is one of the directors of the company. 
Both the points that have been raised on behalf of the prisoner 
therefore fail. The case has not followed the rules in stating 
whether the sentence was respited. The sentence was three 
years' penal servitude, but it would appear that the Judge gave 
the prisoner the option of obtaining bail, and authorised him to be 
-admitted to bail. Prisoner was, however, unable to get bail. 
If the case had followed the rules, no difficulty would have arisen 
on this point. I do not, however, think it necessary to express 
any opinion whether the Judge was bound either to respite the 
■sentence or to postpone execution of it. I think that in most 
■cases the Judge should do so, if not in all. If the case had 
precisely followed the rules, it would have, I think, been un- 
necessary to say anjiihing on the subject. The conviction ought 
to be upheld. 

Harding J. : I am of the same opinion. With regard to the 
question of respiting judgment, I think that, when a Crown 
■case is reserved under The Criminal Practice Act, s. 48, the Judge 
should either respite the execution of the judgment or allow 
the prisoner to go out on bail ; and if bail is not procurable, then 
he should be respited in such a manner that he should not undergo 
any part of his punishment. The question does not directly 
arise, and when it does arise, it will probably be in very different 
proceedings from this. That is my opinion ; and that is the 
course which should be followed. 

Real J. : I am of the same opinion. I desire to express no 
opinion on the necessity of the Judge respiting or postponing 
sontence, except to say that in ordinary circumstances I feel it 
-would be quite proper to do so. Whether it would be bad if the 
Judge did not do so, I express no opinion. 

Conviction affirmed. 



Eeqina v. 

HODSTON. 

Griffith C.J. 



Harding J. 



Real J. 



272 



QUEENSLAND JUSTICE OF THE PEACE. 



1894. 

August. 

Griffith C.J. 
Harding J. 
Real J. 



[Full Coukt.] 
REGINA V. ROYLE. 

[6 Q.Ii.J. 146.— Note.— 29 Vic, No. 6, s. 76, is repealed, see now s. 1 of CriminaE 
Code, definition of " money," and ss. 566 (5), 568 (1), and 641 of Criminal 
Code.] 

Larceny Act of 1865 (29 Vic, No. 6), s. 76— Embezzlement- 
Si Vic, No. 5, s. 1. 

When an offence under s. 76 of The Larceny Act of 1865 relates to a valuable 
security, it is sufficient to allege the embezzlement to be of money without 
specifying any valuable security; and the allegation, so far as it relates to a, 
valuable security, will be proved if the ofiender is proved to have embezzled any 
amount or part of the particular valuable security. 

It is not necessary to prove that the deficiency unaccounted for did not consist 
entirely of securities where the sum is made up of money and securities. 

Since 54 Vic, No. 5, it is immaterial that more three separate sums wer& 
included in the deficiency. 

B. V. Keena, L.B. 1 C.C.R. 113, discussed. 

Cbown Case Resekved by Paul D.C.J. 

A. W. Royle was employed as cashier and accountant by 
Prosser, Taylor & Co. His duties as cashier were to receive- 
all moneys, cheques, drafts, &c., paid to the firm, and deposit the- 
same in the bank to the firm's account. His duty as accountant 
was to keep the books, and especially the general cash-book, 
bank deposit book, and demand orders deposit book, and to maker 
proper entries in them of receipts and deposits. A Mr. DeightorL 
was also in the employ of the firm as assistant book-keeper, and 
his duty was, under prisoner's directions, to write up the general 
cash-book from the rough cash-book, which contained entries of the 
receipts of all moneys received by the firm from day to day. 
The employees had authority to receive money in the warehouse- 
for the firm in the way of business, such as for cash sales, &c., and 
their duty was to make entries of such payments in the rough 
cash-book and hand the money to the prisoner as cashier, 
Deighton received money as well as cheques, &c., in this way,, 
and he always handed the same to the prisoner, and so handed 
him money, cheques, &c., in April last and during previous months.. 
The entries of amounts received in the general cash-book for the 
month of April were in Deighton's handwriting, except three 
which were written by the prisoner, but all the entries in that 
book of deposits made in the bank for that month were wTitten 
l)y the prisoner. In addition to the entries of receipts in the 



CRIMINAL REPOETS, 1860-1907. 273 

general cash-book, taken by Deighton from the rough cash-book, Eeoina v. Eoyle. 
he also received items for entry from the prisoner, but where the 
prisoner obtained them Deighton did not know. Mr. Horstmann, 
who was the auditor for the firm, discovered, on examining the 
books in May last, and especially the general cash-book, that 
there appeared, according to that book, a general deficiency in 
the month of April of £794 4s. 6d., and that the short deposits 
commenced in November last. The general cash-book for that 
month showed £8,444 18s. lOd. as received, and £7,650 as de- 
posited, showing a deficit of £794 4s. 6d. The larger proportion 
of the entries of the amounts purporting to have been received 
according to the general cash-book, not only in April but for other 
previous months, would. His Honour said, consist of money 
orders, cheques, and drafts, but all were entered as cash in the 
cash-books. Mr. Horstmann could not discover from the books 
the individual or specific items of which the deficit was composed, 
or discover any specific amount received by the prisoner during 
April or any previous month as not having been deposited ; but 
the deficit comprised more than three items, and he (Mr. Horst- 
mann) beheved comprised about thirty or forty items. The 
prisoner had charge of the cash-box, and after he left the firm, 
on the 28th May, it was opened, and found to contain £2 lis. lid. 
cash and an I.O.U. of one of the employees for £11 10s. After 
this date Mr. CoUedge, manager of the firm, saw the prisoner, 
and asked him if he could account for the deficiency in the books 
being nearly £800. The prisoner said he knew it was something 
Uke that, but that he could not account for it, nor did he benefit 
by it. Mr. Rutledge, prisoner's counsel, at the close of the case 
for the prosecution, asked His Honour to direct the jury to find 
a verdict of " Not guilty." His Honour refused to do that, 
but asked the jury to answer two questions as well as to deliver 
their verdict. The jury found the prisoner guilty, and answered 
the two questions in the affirmative— (1) Was the amount of the 
general deficiency stolen and fraudulently embezzled by the 
prisoner ? (2) Did that amount consist of money as well as 
cheques and other securities ? The points which His Honour 
reserved at Mr. Rutledge's request were : (1) That there was no 
case to go to the jury, inasmuch as s. 1 of the Act, 54 Vic, No. 5, 
was Umited to money and did not provide for proof of the em- 
bezzlement of money by evidence of a general deficiency in a case 
where the sums, in respect of which a general deficiency of money 
was alleged to arise, consisted partly of money and partly of 



274 



QUEENSLAND JUSTICE OP THE PEACE. 



Griffith C.J. 



Eegina 0. EoYLB. valuable securities, such as cheques, drafts, and orders for the 
payment of money not shown to have been converted into money 
by the prisoner. (2) That there was no evidence that any money 
had been paid to or received by the prisoner. (3) That the evi- 
dence showed that if any sums of money had been paid to and 
received by the prisoner, more than three such sums were included 
in the general deficiency. His Honour deferred passing sentence 
until the Full Court had given a decision on the points reserved. 
Dickson for the Crown ; Rutledge for prisoner. 

Gkiffith C.J. : The prisoner was charged with embezzling 
the sum of £794 from his employers ^ On his trial it was shown 
that he was the cashier and accountant of his employers. His 
duties are set out in the special case. The general cash-book 
was intended to show all the money received by him. Entries , 
were made in it by clerks under his superintendence. The 
book was not for the most part in his handwriting, but during 
the month of April last there were three entries in his handwriting. 
In the same book were entered statements of the amounts 
deposited in the bank, which for the month of April were aU in his 
handwriting. The books were kept under his supervision. 
After he had left the firm's employ, and the books had been 
examined, he was informed that there was a deficiency of nearly 
£800. He said he knew it was something like that, but he could 
not account for it, nor had he benefited by it. It had 
been contended, though I doubt very much whether the 
point is raised by the case, that there was no evidence 
that he received any amount larger than was shown to have 
been deposited in the bank. But I infer from the evidence 
that, though the entries in the books were not all in the 
prisoner's handwriting, they were all made with his cognisance 
and knowledge, and therefore they operated as an admission 
against him. I draw that inference from all the facts stated, 
not as a necessary inference, but an inference which the jury 
might draw from all the facts as stated. I quite agree that it is 
not sufiicient to show that the books were kept under his general 
superintendence. It must be shown that the entries were made 
with his knowledge. If, therefore, that objection was intended 
to be raised, which on the face of the case stated was doubtful, 
I think it failed. Mr. Rutledge relied also on the case of R. v. 
Keena, L.R., 1 C.C.R., 113. The 76th section of The Larceny 
Act of 1865 provides, that, on an indictment for embezzlement, 
" where the offence shall relate to any money or any valuable 



CRIMINAL EEPORTS, 1860-1907. 275 

security, it shall be sufficient to allege the embezzlement or I^^gina r. Boyle. 

fraudulent application or disposition to be of money without Griffith C.J. 

specifying any particular coin or valuable security ; and such 

allegations, so far as regards the description of the property, shall 

be sustained if the offender shall be proved to have embezzled 

or fraudulently applied or disposed of any amount, although the 

particular species of coin or valuable security of which such 

amount was composed shall not be proved." The grammatical 

construction of that section is, that, when the charge relates to a 

valuable security, it is to be sufficient to allege the embezzlement 

to be of money, without specifying any particular valuable 

security; and the . allegation will be sustained if the offender is 

proved to have embezzled any amount, although the particular coin 

or valuable security of which it is composed is not proved. The 

section was taken from the much earlier Act of 7 Geo. IV., Ch. 29, 

which came under the notice of the Court in the case of E. v. 

Grove, 1 Mood C.C., 447, a case which has often been cited in 

cases of embezzlement sought to be proved by evidence of general 

deficiency. The plain, Uteral meaning of the section is, that, in 

charging a man with embezzlement from his employer, it is 

enough to charge him with embezzUng money, although the 

evidence might show that he took money or valuable 

securities or both, the term valuable securities including, 

by its definition, cheques and drafts and other securities. 

On this section the point raised by the prisoner's counsel is, that 

what was received by the prisoner consisted partly of cheques 

and partly of money, and that it was not shown that what he 

embezzled, or what he failed to account for, did not consist 

entirely of cheques. It is quite possible that he paid into the 

bank all the cash that he received, and that he made away only 

with cheques. Apart from the statute, I should be very much 

incUned to think that it would be open to the jury, upon its being 

proved that a man received a large sum of money — using the word 

money in the ordinary sense, as consisting of cheques, notes, 

orders, and coin — and made away with a large part of it, to infer 

that the part which he made away with consisted in part of cash. 

But, assuming that that was not so, and that it must be taken 

in favour of the prisoner that all he made away with consisted 

of cheques, then, there being no evidence, although the jury 

found that some of the deficiency consisted of money— there 

being no distinct evidence that it did consist of money— Mr. 

Eutledge reUed on Keena's Case. In that case the prisoner was 



276 QUEENSLAND JUSTICE OP THE PEACE. 

Besina v. Boyle, accused of embezzling £16. The evidence was, that he received 
Griffith C.J. a cheque for £16 for his master, and gave a receipt for it. He 
did not account for it, and went away. That was practically all 
the evidence. It was said to have been held that a section 
corresponding to s. 76 of our Larceny Act would not justify the 
allegation of the embezzlement of money when it was only a. 
cheque that had been embezzled, and there was no proof that the 
prisoner had ever cashed it. This Court is not technically bound 
by Keena's Case, but I think we ought to follow it unless there is 
some strong reason to the contrary, so far as we can discover the 
ratio decidendi. It may be that Lord Chief Justice Cockburn 
and A. L. Smith J. thought that the Act referred only to cases 
in which what was actually taken was taken in the form of 
money. One at least of the learned Judges was of opinion that the 
case against the prisoner failed otherwise. It appears to me 
that no clear principle can be drawn from that case applicable 
to such a case as the present, where the sum alleged to have been, 
embezzled comprised a mixed fund, composed partly of cheques, 
orders, &c. What the prisoner took was part of a mixed fund, 
comprising cheques and money, and it appears to me that the 
Act expressly says that it is sufficient to charge him with em- 
bezzling money. It seems to me that this is exactly the case of 
R. V. Balls, L.R., 1 C.C.R. 328, where a man, having to account 
weekly for the money he received, accounted for £90 only and 
kept £10. Not being able to discover any clear principle in S. 
V. Keena, I do not think we are bound to apply it to the present 
case. I think that the present case falls exactly within the 
terms of the 76th section of The Larceny Act. The third point 
raised was, that the evidence showed that if any sum had been 
received there were more than three such sums included in the 
general deficiency. That does not seem to be an objection, 
especially in the face of the Act of 1890, which provides that, " on 
the prosecution of any person for the larceny or embezzlement, as 
a clerk or servant, of money, the property of his master, it shall 
not be necessary to prove the larceny or embezzlement by him 
of any specific sum of money, if there is proof of a general 
deficiency on the examination of the books of account or entries 
kept or made by him or otherwise, and the jury are satisfied that 
the accused stole or fraudulently embezzled the deficient money 
or any part thereof." On the grounds which I have stated, I 
am of opinion that the conviction ought to be affirmed. 

Harding J. Haeding J. : The prisoner's duty as cashier was to receive 



CRIMINAL REPORTS, 1860—1907. 277 

all moneys, cheques, drafts, &c., paid to the firm, and deposit ^^^^^''^ "■ ^°''^^- 
the same in the bank to the firm's credit. As accountant, his Hardii;^ J 
duty was to keep the books, one being the general cash-book. 
Deighton was the assistant book-keeper under the prisoner's 
direction. He received moneys, cheques, drafts, &c., and he 
handed to the prisoner moneys and cheques received in April. 
The prisoner made entries in the general cash-book. He also 
made all the entries therein of the deposits made in the bank for 
April. The general cash-book for April showed a general defici- 
ency of £794 4s. 6d.— £8,444 18s. lOd. being shown as received, 
and £7,650 14s. 4d. as deposited. It is further stated in the 
case that the larger proportion of the amounts purporting to have 
been received according to the general cash-book, not only in 
April but in previous months, would consist of money orders, 
cheques, and drafts, but were all entered as cash in the cash-book. 
Prom this I deduce that some of the money, using the word 
in its largest sense, being less than half of the £8,444 18s. lOd., 
consisted of actual money (coin), but it is not necessary to require 
that so much as this, or so much as £794 4s. 6d., the amount 
alleged to have been embezzled, should have been paid in actual 
money (coin), the mere small sum handed by Deighton to the 
prisoner being sufficient to support the information if proved 
to have been received by the prisoner and embezzled by him. 
But this actual proof is not required under The Larceny Act 
Ar/iendment Act of 1890. Here we have a general deficiency, 
on the examination of the books, which, with the evidence as 
above, and the answers of the jury to the judge's second 
question, showed that some money (coin) had been received by 
the prisoner. From that the jury were justified in concluding 
that money (coin) was embezzled. The prisoner might have 
rebutted this, but he did not do so. The conviction must be 
affirmed. 

Real J. : To convict of embezzlement, it is necessary to Keal ,J. 

prove that a man received money, using the word in the widest 
sense, as comprehending cheques or other valuable securities, 
and that it had been misapplied or fraudulently appropriated. 
Those are the two things which have to be proved, and many 
circumstances have to be proved in connection with them. That 
money has been received might be proved in many different 
ways, but it is the first principle of our law that a man is innocent 
until he is proved guilty. There might be circumstances of sus- 
picion, all capable of being proved, and all tending to point to the 



278 QUEENSLAND JUSTICE OF THE PE-ACE. 

Eegina v. Eotle. possibility or probability of guilt ; but such evidence has to be 
EeaTj. given to the jury so as to enable them to say, not that it was 

probable that the prisoner was guilty, but that he is guilty. I 
feel it necessary to say that, because it has been urged that there 
was no evidence that the prisoner had received money to a greater 
extent than he had paid into the bank. The Act of 1890 provides 
that where a man has charged himself in his account in the books 
kept by him, or the entries made by him with a sum of money, 
and has not accounted for the whole of it, the jury, if the man 
was a clerk or servant, might f3nd him guilty of embezzlement. 
That section was no doubt made to simplify the method of proof, 
but I do not think that it altered the law. In all cases, an 
admission, or a confession, is said to be the highest proof that 
can be given of a man's guilt. That was the state of the law 
before the passing of the Act, and I do not think this Act has 
altered it in the slightest degree. I think the term " kept by 
him " was used in the sense of a person who made entries. I do not 
think it altered the law that a man who did not actually make 
the entries could not bind himself by admitting the correctness 
of the entries. The facts of the case show clearly that the 
prisoner knew and admitted the correctness of the entries on the 
debit side as concerning himself. That being so, it was his duty 
to see that the books were properly kept. To my mind, there 
was a clear admission of the receipt of the money, and the admis- 
sion of correctness was as strong as if the prisoner had taken the 
books and written " correct " across the entries. The important 
question in the case is, that there cannot be a conviction of 
embezzlement of money because there was nothing to show the 
receipt and non-paying over of cash. The section of The Larceny 
Act says, that an information could properly charge a man with 
embezzling money, when all he had done was to take a valuable 
security. The case of R. v. Keena, which has been cited as an 
authority to the contrary, is, in my opinion, quite inconsistent 
with the decision which has been come to by the Court. The 
two decisions cannot stand together. I do not consider it 
necessary to follow that case, and am satisfied that the conviction 
ought to be confirmed. 

Conviction affirmed. 

Solicitors : O'Shea & O'Shea. 



CRIMINAL EEPORTS, 1860-1907. 



279 



[Full Court.] 
REGINA V. McGEE. 

[6 Q.L.J. 151.— Note.— 55 Vie., No. 24, ss. 3, 4, and 10, are repealed, see now s. 215 
of Criminal Code. Criminal Law Amendment Act ol 1891, s. 10, is repealed, 
see now ss. 578 and 583 of Criminal Code. As to indecent assault, see now 
s. 350 ot Criminal Co'de. Case referred to in R. v. Cawley (7 Q.L.J. at 50, post.] 

Criminal Law Amendment Act of 1891 (55 Vic, No. 24); ss. 3, 4, 
10 — Rape — Want of corroborative evidence — Indecent assault. 

A prisoner charged with rape on a child under twelve years of age was found 
guilty of an attempt to have unlawful carnal knowledge, under s. 4 of The Act of 
1891, and of indecent assault. There was no corroborative evidence implicating 
the accused. 

Held, that the conviction as to the attempt must be quashed, but the conviction 
for indecent assault affirmed. 

Cbown Case Reseeved by Harding J. 

At the Ipswich. Circuit Court, held on 28th July, Ernest McGee, 
who had been charged with having committed rape on a child 
under twelve years of age, was found guilty of an attempt to 
have unlawful carnal knowledge of such girl, and, also, of an 
indecent assault. The prisoner was defended by Mr. P. B. 
Macgregor, who raised the points (1) that as to the attempt 
there was no corroborating evidence within the meaning of the 
last paragraph of s. 4 of Tlie Criminal Law Amendment Act of 1891 ; 
(2) and that the jury, having found the prisoner guilty of the 
attempt, were functi officio, and the information exhausted. 
His Honour reserved these points. He sentenced the prisoner 
separately on each conviction, but made the sentences concurrent, 
and respited execution of the judgment until the questions raised 
had been decided. Meanwhile, he remanded the prisoner to 
gaol. In his statement of the case. His Honour stated that the 
only evidence implicating the prisoner other than the evidence of 
the girl to the commission of the offence was evidence that the 
prisoner was at the place and on the same morning, but before 
the time when the offence was sworn by the girl to have been 
committed. As to the time when it was committed, evidence 
was given in support of an alibi on the part of the prisoner. 
The question for the consideration of the Court was, therefore, 
whether the prisoner had been rightly convicted of the crimes 
charged against him, or either, and which of them. 

Power for the Crown ; Macgregor for the prisoner. 



1894. 
August. 

Griffith d.J. 
Harding J. 
Real J. 



280 



QUEENSLAND JUSTICE OP THE PEACE. 



Beoina V, 
McGee. 

Griffith C.J. 



Geiffith C.J. : The prisoner was charged with rape. By 
the 10th section of The Criminal Law Amendment Act of 1891 
it is provided that if on the trial of an information for rape or any 
offence made felony by the 4th section of the Act the jury are 
satisfied that the accused person was guilty of an offence under 
the 3rd, 4th, or 6th sections of the Act, or of an indecent assault, 
but are not satisfied that the accused was guilty of the felony 
charged in the information, or of an attempt to commit that 
felony, the jury may acquit the accused of the felony, and may 
find him guilty of such other offence, or of an indecent assault. 
Upon the trial of this man, therefore, he might have been con- 
victed under the 3rd, 4th, or 6th sections of the Act, or of an 
indecent assault, or of an attempt to commit the offence of rape. 
But by the provisions of the 4th section, and the 3rd and 6th 
sections for that matter, it is enacted that no person shall be 
convicted of an offence under the section upon the evidence of one 
witness only, unless such evidence is corroborated in some material 
particulars by evidence implicating the accused. Upon the trial 
objection was taken that there was no evidence corroborating 
that of the prosecutrix within the meaning of the Act. The 
only evidence of a corroborative nature was, putting it at the 
highest, that the accused and she were alone together in the house 
where they both lived. They had not gone there for any par- 
ticular purpose. They both hved there ordinarily, and had 
been Hving there for some time. For my own part, I do not think 
that that is corroborative evidence of an attempt to commit 
this kind of offence upon her. I think, therefore, that there was 
no corroborative evidence, and under these circumstances the 
prisoner could not be convicted under the 3rd, 4th, or 6th sections 
of the Act. But the rule requiring corroborative evidence does 
not apply to the charge of indecent assault. The learned Judge 
told the jury that he could see no corroborative evidence, and 
advised them to acquit the prisoner of the attempt, and left it to 
them whether he ought to be found guilty of indecent assault. 
The jury, probably, thinking themselves wiser than the learned 
Judge, and beheving the girl's evidence, found that he was 
guilty of an attempt to commit an offence on a child under the 
age of twelve years, and they also found him guilty of indecent 
assault. The second objection was, that these two findings 
could not stand together, and that under s. 10 the jury must find 
the prisoner guilty of one of the offences enumerated in the 
statute, or of an indencent assault, but could not find him guilty 
of two offences, and that the verdict finding him guilty of two 



CRIMINAL REPORTS, 1860-1907. 



281 



offences was, therefore, bad altogether. That was supported by 
a very ingenious argument founded upon the words of this section, 
which might be said to point to the conclusion that the jury must 
make up their minds of what offence the accused was guilty, and 
say that he was guilty of one or another, but could not find him 
guilty of both. I think that in construing this section we ought 
to have regard to the general law and rules of the Court relating 
to criminal pleadings before the Act was passed. One of the 
rules at common law was, that a plaintiff could make his case in 
as many counts as he pleased, and if he succeeded in establishing 
one of them to the satisfaction of the jury, he was entitled to 
judgment on that. If damages were awarded jointly on a good 
and bad count the verdict would not stand. In criminal pro- 
ceedings it was competent for the Crown to join as many charges 
as they thought fit in the same indictment — being all either felony 
or misdemeanour — and they were treated theoretically as charges 
of different offences. But that was mitigated by the rule that if 
a man was really charged with more than one act as a crime, the 
prosecutor could be called upon to elect which act he would pro- 
ceed upon. Theoretically, as many charges might be included as 
the prosecutor thought fit ; and, theoretically, if the jury gave 
a general verdict, it would be good. And it was not uncommon 
to combine charges of different offences in the same information 
either for misdemeanour or felony. That being the general 
practice under the old rules, the Court by degrees, for the purpose 
of saving trouble and simplifying matters, introduced a rule that, 
upon the charge of an offence which necessarily involved a minor 
offence, the jury might find the accused guilty of the minor 
offence. That was in the first year of Queen Victoria, I think. 
That practice was further extended until brought to its highest 
development in this Act now before the Court. The question 
now is. What construction should be placed upon that new rule 
of procedure ? Was an information, although containing only 
one count, to be treated as containing separate counts for each 
separate offence of which the accused might be found guilty 
under the one charge ? For some purposes I think that is so. 
Mr. Justice Harding in this case took the verdict of the jury on 
each charge involved in the indictment. Other judges are 
content to take the verdict of guilty on one charge and to treat 
the verdict as one of not guilty on all the rest. The question, 
then, arises whether it was competent under these circumstances 
to find the prisoner guilty of more than one offence. It seems to 
me that the principle intended to be introduced by the Acts 



Begina u. 
McGee. 

Griffith C.J. 



282 



QUEENSLAND JUSTICE OF THE PEACE. 



Eegina v. 

McGee. 

Griffith C.J. 



Harding J. 
Eeal J. 



beginning with the last year of William IV., down to the year 
1891, was to introduce into the criminal procedure an analogous 
system to that provided for by the rules of common law procedure 
— «o that the jury might, on a charge of this sort, if they found 
all the necessary ingredients of a criminal offence, give- their 
verdict upon it, and in addition find other ingredients which would, 
together with the first, constitute a criminal offence of a higher 
degree. If that is the correct view, the two findings could not 
vitiate one another. A good finding supported by the evidence 
would not be vitiated by a finding unsupported by the evidence. 
I cannot find any authority, nor has any been brought under my 
notice, showing that a verdict, supported by evidence that a man 
was guilty of an offence, would be vitiated by a finding that he 
was also guilty of some other offence, which was not warranted 
by the evidence ; nor do I know any reason why the verdict on 
one count should be taken in priority of the other. One of them 
was warranted by the evidence ; the other was not. Under these 
circumstances, I do not think the finding warranted by the evi- 
dence was vitiated by the finding not warranted by the evidence. 
For these reasons, I am of opinion that the conviction for the 
attempt should be quashed, and that for the indecent assault 
affirmed. I should Uke to offer one other observation in passing — 
Under the old rule, where there were several counts in the in- 
formation, they were treated as separate charges, and the sentence 
upon them might be cumulative. They were, in point of fact, 
different counts ; and there was nothing on the face of the infor- 
mation to inform the Court that the charges were all in respect of 
the same act. But where the same practical result, so far as 
regards the capacity of the jury to convict, arises under the 
statutory power, to which I have referred, the circumstances are 
different, because there the Court knows, on looking at the 
information itself, that it is only one act that is charged. It is 
not several charges, but only one ; and although a man might 
be convicted on such an information of various crimes technically 
different, yet the Court knows that only one offence was charged, 
so that in that case, I think there could be only one sentence ; 
and if one offence was graver than the other, I think the minor 
offence would merge in the greater one. 

Harding and Real JJ. concurred. 

The conviction for the attempted criminal assault was quashed, 
and that for the indecent assault affirmed. 
Solicitor for prisoner : P. A. 0' Sullivan. 



CRIMINAL REPOETS, 1860-1907. 



283 



[Full Couet.] 
BLACK V. TURNER. 

[6 Q.L.J. 153.— Note.— 29 Vic, No. 5, s. 26, is repealed, see now ss. 22, 469, and 
476 of Ciimlnal Code. Case followed in Keable v. Clancey, 3 Q.J.P.R. 206, 
1909 S.R.Q. 345).] 

Injuries to Property Act of 1865 (29 Vic, No. 5), s. 26 — Bona fide 
claim of right — Wrongful admission of evidence. 

A bona fide claim to use land as a highway ousts the jurisdiction of justices on 
an information for malicious injury to a fence erected across such land. 

Quaere, whether a map of the locus in quo, purporting to be drawn by a surveyor 
who is not called as a witness, can be admitted in evidence if objected to. 

Oedee nisi to set aside a conviction of Justices at Mount 
Morgan, against W. Turner, under s. 26 of The Injuries to Property 
Act of 1865, for unlawfully and maliciously destroying a fence, 
whereby the defendant was ordered to pay a fine of one guinea, 
thirteen shillings damages, and two pounds for costs. 

The grounds for the rule were : (1) That the evidence disclosed 
no offence ; (2) that there was no evidence that the defendant 
acted unlawfully and maliciously ; (3) that the defendant acted 
under an assertion of a bona fide claim of right ; and (4) that 
evidence was wrongfully admitted. 

It appeared that a fence had been erected by the trustees of 
the Mount Morgan Racecourse across a track, which it was alleged 
had been in use for some years as a highway. The defendant, 
who had been in the habit of driving along this track, found it 
one day closed by a fence, he pulled down about 35 feet and 
made a way for himself. He was prosecuted for .maliciously 
destroying the property of the Mount Morgan Racing Club, and 
set up as a defence that the track was a public road, and that he 
had a right to remove the obstruction. 

It was also contended that the bench wrongfully admitted what 
purported to be a plan of the locality. 

Lilley for appellant ; Feez for respondent. 

Gkiffith C.J. : The appellant was charged with having un- 
lawfully and maliciously destroyed a fence, the property of the 
trustees of the racecourse at Mount Morgan. The defence 
that he set up was in substance that there had been for many 
years a road leading through the racecourse reserve, and that 
that road had by long usage become dedicated as a public highway. 
In the present case there was no doubt that this road had been 



1894. 
August, 

Griffith a J. 
Harding J. 
Real J. 



Griffith C.J. 



284 



QUEENSLAND JUSTICE OF THE PEACE. 



Black v. TnRNER. used for many years. It was not a road surveyed, or of any 
Griffith C J, definite width, but it was a track that led through the land. 
Whether it had been dedicated as a highway, or whether a road 
could be dedicated by mere user under- such circumstances, were 
interesting questions ; but, at any rate, there was no doubt that 
under these circumstances a man might honestly believe that 
such a right did exist. In my opinion, a bona fide claim of right 
to use a highway is a sufficient claim of right to oust the jurisdiction 
of the Justices. If it were a frivolous claim, the Justices would 
probably not be bound to stay their hands. But I do not think 
that the Justices had any evidence before them to suggest that 
the claim of right set up was not bona fide. I therefore think 
that the conviction ought not to have been made, and that the 
rule must be made absolute. On the question of the admissibihty 
of evidence, not having heard argument on both sides, I express 
no opinion. 



Harding J. Harding J. : I agree with the learned Chief Justice in his 

opinion that reasonable evidence of a bona fide claim of right-of- 
way was raised in the case, and upon it being given, the Magis- 
trates' jurisdiction was ousted. I think that the rule must be 
made absolute, also, on the ground that evidence was wrongly 
admitted. The evidence said to have been wrongly 
admitted was a map of the locits in quo. That was map D, 
which purported to have been dra-mti by Frederick Byerley, 
licensed surveyor, Rockhampton ; but Byerley was not called, 
and so far as that was concerned it was secondary evidence of his 
having made it. If he had been called, and the plan had been 
tendered, the proper course for the counsel for the defendant 
to have followed would have been to ask how it was made up. 
The surveyor would at once have been bound to say that it was a 
copy of another map, which itself had been compiled from notes 
on the field, so that either map would not be primary evidence, 
and in no case could this map be evidence at all. It was not 
receivable evidence ; and after reading the evidence and listening 
to the argument, I am of opinion that if I had been deciding the 
case, the map would have materially affected my judgment. 
Seeing that the Magistrates had visited the loctis in quo and took 
the plan with them, I can only infer that it affected their decision. 
It has been decided by the Court that in a criminal prosecution 
it is the duty of the Judge to keep out illegal evidence, and that 
if the case goes to the jury with illegal evidence a conviction will 



CRIMINAL REPORTS, 1860-1907. 



285 



not stand. This evidence was wrongly admitted, and on that ^^"^ "• Tueneb. 
ground also the rule ought to be made absolute and with costs. Harding J. 

Real J. : I concur with the judgment of the learned Chief 
Justice. I express no opinion on the wrongful admission of 
evidence. 

Conviction quashed with costs. 

Solicitors for appellant : Bees R. di S. Jones. 

Solicitors for respondents : Chambers, Bruce <fc McNah. 



[BtTNDABERG CbIMINAL SITTINGS.] 

REGINA V. ROBINSON. 

[6 Q.L.J. 184.] 

Prisoner committed for trial hut unable to he brought to Circuit 
Town through illness — Form of Bench Warrant. 

An information was presented against the accused for forgery 
and uttering. The accused did not appear, and the Crown 
Prosecutor, after reading an affidavit of the Government Medical 
Officer that the accused was in Brisbane Gaol and was unable 
through iUness to appear, appUed for the issue of a Bench Warrant. 
The Chief Justice directed the application to stand over till the 
close of the Sittings, and on its renewal at that time a Bench 
Warrant was granted in the following form : — 

Queensland. 

IN THE CIBCtriT COURT AT BUNDABERG. 

To all Police Officers within the Colony of Queensland, and 
to the Keeper of the Gaol at Bundaberg in the said Colony : 

These are to require and in Her Majesty's name to charge and 
command you the said Police Officers upon sight hereof to bring 
before me at the Circuit Court now holden at Bundaberg in the 
said Colony Thomas Robinson against whom an information 
has been presented before me in the said Circuit Court for forgery 
and uttering a forgery if the Court be then and there sitting, 
and if not to convey the said Thomas Robinson to the Gaol at 
Bundaberg aforesaid and deliver him to the keeper thereof 
together with this Warrant. And these are further to command 



1894 
5th October. 

Griffith G.J. 



286 



Eegina v. 
kobikson. 



QUEENSLAND JUSTICE OF THE PEACE. 

you the Keeper of the said Gaol to receive the said Thomas 
Robinson into your custody into the said Gaol and him there keep 
until the next Sittings of the said Circuit Court at Bundaberg 
aforesaid or until he shall thence be delivered by due course of 
law. 

(Indorsement.) 

I authorize that the within-named Thomas Robinson be bailed 
by recognizance himself in the sum of £80 and two sureties in the 
sum of £40 each. 



1895. 

Febrvary. 

Griffith G.J. 
Harding J. 
Real J. 



[Full Court.] 
REGINA V. CONNELL. 

[6 Q.L.J. 209.— Note.— As to embezzlement, see now s. 398 (VI.) of Criminal Code. 
57 Vic, No. 1, is repealed by 4 Ed. Vn., No. 6. Case referred to in B. v. 
Whitehouse, 6 Q.L.J. 313, post.)] 

Criminal law — Embezzlement — Incorporation of company — 57 Vic, 

No. I. 

The Court will take judicial notice of the existence of an incorporated company 
mentioned as such in a statute. 

On a charge of embezzlement from such a company it is unnecessary to prove 
its incorporation. 

Ckown. Case Reserved by Noel D.C.J. 

The prisoner was charged at Croydon with embezzling the 
funds of the Queensland National Bank Limited. No evidence 
was given of the incorporation of the bank. The learned Judge 
refused to direct on that account that there was no proof that the 
prisoner was employed by the Queensland National Bank 
Limited, and that there was no proof of the existence of such an 
institution. 

The prisoner was convicted, but the points were reserved for 
the FuU Court. '™' 

Power, for the Crown, cited Regina v. Langton (2 Q.B.D. 296). 

Ball for prisoner. 

As there was some doubt whether the word limited was con- 
tained in the information describing the bank, the case was 
referred for amendment. 



OEIMINAL REPORTS, 1860-1907. 



287 



Gbiffith C.J. : By the case as now amended it appears that 
the prisoner was indicted for embezzlement as a servant of the 
Queensland National Bank Limited. The evidence showed 
that he was in the employ of the Queensland National Bank 
Limited, as teller. The point taken by the prisoner's advocate 
was that there was no evidence that the Queensland National 
Bank Limited, was a duly incorporated joint stock company. 
What conclusion might be come to apart from the statute 57 
Vic, No. 1, it is not necessary to say. That statute recognised 
the institution called the Queensland National Bank Limited, 
as a duly incorporated joint stock company carrying on business 
in Queensland. That is an Act of which the Court is bound to 
take notice. It appears to me that the statute completely 
answers the objection, and the conviction must be afifirmed. 

Harding J. : To support a charge of embezzlement it is 
necessary to prove the ownership of the property embezzled. 
Now the owner of property is either an actual or an artificial 
person having power to deal with it — actual such as a human 
being, artificial such as an entity constituted and enabled by law 
to deal with it. In no other way can property form the subject 
of ownership. A dumb animal cannot, nor can an inanimate 
thing own property. A number of persons cannot nor can a single 
person not incorporated or so enabled by Act of ParUament own 
property by a name. It belongs to them or him jointly and 
severally as the case may be. If a man transfers his property 
to an inanimate thing, it does not pass to that thing. In the 
present case it was not at first stated that the Queensland National 
Bank was a company incorporated or otherwise able or entitled 
to hold property by the name of the Queensland National Bank. 
As the case was left it might have been simply a trade name 
or an individual or a number of persons unincorporated. Conse- 
quently, the ownership of the property would not have been 
found, and the prisoner would have been wrongfully convicted, 
there being no evidence that such an institution existed in law. 
As the case has come back it appears from the information that 
the prisoner was charged as the employe of the Queensland 
National Bank Limited, and that it was the property of that 
bank and not of a company called the Queensland National 
Bank he was .charged with embezzHng. The Judge's notes 
of the case show that there was evidence of those facts, and of 
the baiik as carrying on business. The production of the certifi- 
cate of incorporation is not necessary when it is found that the 



Rbgisa v. 

CONNELL. 

Griffith C.J. 



Harding J. 



?88 



Begina v. 

CONNELL. 

, Harding J. 



Eeal J. 



QUEE^fSLAND JUSTICE OP THE PEACE. 

company has carried on business as such. The Court takes 
judicial knowledge of the existence of the Queensland National 
Bank Limited, as an incorporated company, the company being 
recognised by statute as such. The company being in existence 
and the prisoner engaged as an employe of that company, there 
was consequently evidence to go to the jury that the company 
in respect of whose money he was charged with having embezzled 
was the same company as that mentioned in the Act of Parlia- 
ment 57 Vic, No. 1. 

Real J. concurred. 

Conviction affirmed. 

Solicitor for prisoner : F. J. Lyons. 



[Bbisbane Criminal Sittings.] 
REGINA V. VOS AND OTHERS. 

[6 Q.L.J. 215.— Note.— See Form No. 360, Part I., s. III., ol Schedule to Criminal 
Code, Wilson & Graham's Code, p. 480.] 

1895. Criminal law — Jurisdiction — Judicial notice — Pacific Islanders 

15th March. Protection Act 1872 (35 and 36 Vic, c. 19), s. 9—38 and 39 

Harding J. Vic, C. 51, S. 6. 

On an information against certain prisoners for an alleged breach of s. 9 of 35 
and 36 Vie., o. 19, a question arose whether the island of Malayta was part of Her 
iKlajesty's dominions or within the jurisdiction of any civilised Power. The 
presiding judge directed a letter to the Governor of Queensland, and received a 
reply that it was not, but that it was under the protectorate of Her Majesty the 
Queen. From an Order-in-Counoil, under s. 6 of 38 and 39 Vic, u. 51, setting out 
the limits of dominion, it appeared that Malayta was not part of Her Majesty's 
dominions, nor within the jurisdiction of any civilised Power. 

Harding J. held he had sufficient information to take judicial notice of the 
position of the island, and decided that the court had jurisdiction to try the 
information. 

Information against Joseph Vos, George Thomas Olver, 
Michael Joseph Curry, Alfred Cuthbert Hall, Arthur Absalom, 
and Alfred Dowsett, under 35 and 36 Vic, c. 19, s. 9. 

Byrnes A.G., Power, and Lukin, for the Crown. 

Feez for the prisoners. 



CRIMINAL REPOETS, 1860-1907. 289 

Byrnes A.G., before opening the case for the prosecution, R^oina f- Vos 

stated that the question of the extent of Her Majesty's dominions 

would probably arise, and submitted a reference should be made 
to His Excellency the Governor, as Her Majesty's representative 
in the colony, to inform the Court whether the island of Malayta 
was within Her Majesty's dominions or within the jurisdiction of 
any civilised Power. Reference was made to Mighell v. Sultan 
of Johore (1894, 1 Q.B. 149) ; Be Carlo Pedro (5 Q.L.J. 22), 
Taylor v. Barclay (2 Sim, 221), Foreign Jurisdiction Act, 1890 
(53 and 54 Vic, c. 37), s. 4. 

The jury were then impanelled. 

At a later stage in the case Harding J. directed a question for the 
Governor, " Is the island of Malayta, which is an island in the 
Pacific Ocean, within Her Majesty's dominions, or within the 
jurisdiction of any civiUsed power ? " A reply was received in 
the negative. A copy of the Queensland Government Gazette, 
dated the 21st May, 1892, containing the regulations under The 
Pacific Island Labourers Acts ; a copy dated 31st August, 1872 ; 
and a copy dated 16th November, 1875, containing a procla- 
mation of 35 and 36 Vic, c 19, were put in evidence. 

Feez submitted there was no case to go to the jury, and asked 
for a direction to the jury to return a verdict of not guilty against 
all the prisoners, on the ground that there is no evidence that the 
island of Malayta is not within Her Majesty's dominions, nor 
within the jurisdiction of any civilised Power ; and also on the 
ground that there was no evidence that the islanders or any of 
them were carried away without their consent. He cited Taylor 
on Evidence, s. 17. 

Habding J. : The question has arisen whether the island of Harding J. 
Malayta is not in Her Majesty's dominions, and not within the 
jurisdiction of any civilised Power. Whether that is for me as a 
Judge declaring the law, or whether it is a question of fact to 
be ascertained by the jury, has been raised by Mr. Feez. He 
has contended that it is not a matter of judicial knowledge, or 
amongst the things which are judicially taken notice of. The 
American writer, Greenleaf on Evidence, Vol. III., 282, whose 
book was taken as the basis of the EngUsh book by Taylor, 
one of the leading books on evidence has thus stated the matter. 
" The principle on which judicial notice is taken is the universal 
notoriety of the facts in question. These are sometimes distri- 
buted into two classes, composed of those things of which the 



290 QUEENSLAND JUSTICE OF THE PEACE. 

Eegina v. Vos Court of its own motion takes notice, and those of which it does 

AND OtBBSR 

not take notice, unless its attention is directed to them by the 

Harding J. parties." If the Court is embarrassed, it may take or refuse to 
take judicial notice of a fact which forms one of the subjects of 
judicial cognisance, and unless the party calling upon the Court 
to take such judicial notice produces the books and documents 
which satisfy him as to its existence. But the Judge may inform 
himself of such facts in any way which he may deem best in his 
discretion, so that in this case I might have stopped the case 
until the Attorney-General had proved to my satisfaction the 
fact of which I am required to take judicial notice — namely, 
that these islands are not in Her Majesty's possession or within 
the jurisdiction of any civilised Power. I might have stopped 
the case until he had produced evidence of that, or I might have 
known it, and if I did not know it I might have informed myself 
in any way which I deem best in my discretion. I am not obUged 
to take judicial notice of any of those matters of fact, but I am 
at liberty to do so at my discretion. The text writers say that 
the exercise of that discretion depends upon the nature of the 
subject usually involved, and the apparent justice of the case. 
I have taken two courses in this case, each for the purpose of 
satisfying myself, and they have both brought me to the same 
conclusion. I have a letter under the hand of His Excellency 
the Governor, Sir Henry WyUe Norman, signing himself, not 
only as Sir Henry WyUe Norman, but as Governor of Queensland, 
dated from Government House as late as the 12th March in this 
present year. His Excellency has informed me that he is able, 
from his official knowledge, to inform me that the island of Malayta 
is not part of the Queen's dominions, and not within the juris- 
diction of any civilised Power, but that it is under the protectorate 
of Her Majesty the Queen. That, I think, alone would be suffici- 
ent for me to base my opinion on ; but I further support my 
knowledge by reference to the Pacific Islanders Protection Act of 
1875, being 38 and 39 Vic, c. 51, s. 6, which says, " It shall be 
lawful for Her Majesty to exercise power and jurisdiction over 
her subjects within any islands and places in the Pacific Ocean, 
not being within Her Majesty's dominions, nor within the juris- 
diction of any civiUsed Power, in the same and in as ample a 
manner as if such power or jurisdiction had been acquired by the 
cession or conquest of territory, and by Order in Council to create 
and constitute the office of High Commissioner in, over, and for 
such islands and places." In the case of The King v. Daniel 



CRIMINAL REPORTS, 1860-1907. 



291 



Holt in 5 Term Reports, p. 436, at p. 442, it is stated that " the 
Gazette is of itself prima facie evidence of matters of State and 
of the pubhc Acts of the Government. It is pubhshed by the 
authority of the Crown ; it is the usual way of notifying such 
Acts to the public ; and therefore is entitled to credit in respect 
of such matters. Lord Holt held it a high misdemeanour to 
pubhsh anything as from royal authority which was not so. 
In a late case at Lancaster, upon an occasion similar to the present. 
Justice BuUer held that the Gazette is evidence of the King's 
proclamation contained therein. So it has been held by all the 
Judges that the articles of war printed by the King's printer 
are good evidence of such articles." Now, it being a high mis- 
demeanour to publish as from the royal authority that which 
has not the royal authority for its publication, and anything of 
royal authority published by persons that have that authority 
and profess to publish by royal authority is receivable as evidence, 
I consequently turn to a publication of the English Government 
which on the bottom of it has " published by authority." This 
is a compilation of statutory rules and orders issued in the year 
1893, and at page 312 I find the Pacific Order-in-Council of 1893. 
Now that order specifically recites the section of the Act which I 
have read, and that it is made in pursuance of that Act and other 
Acts. Consequently anything contained in that order and 
anything recited in the Acts of Parliament are to be taken by the 
Courts to be facts. Now the Act which I have referred to (38 and 
39 Vic, c. 51) has to be read and incorporated with 35 and 36 
Vic, c 19, which recites in the preamble that "Whereas criminal 
outrages by British subjects upon natives of islands in the Pacific 
Ocean, not being in Her Majesty's dominions nor within the 
jurisdiction of any civilised Power, have of late much prevailed 
and increased, and it is expedient to make further provision for 
the prevention and punishment of such outrages." Therefore 
the Act of Parhament and the Order-in-Council were both made 
with the object of providing' for places " not being in Her 
Majesty's dominions nor within the jurisdiction of any civilised 
Power." From that I take it that anything I find stated as a 
fact in this Order-in-Council is the law of the land, and is a fact 
recognised by our law. Now the Order-in-Council states that 
its hmits shall be the Pacific Ocean and the islands and places 
therein, including certain mentioned, but exclusive, except as 
this order expressly provides by subsection 2, of any place for 
the time being within the jurisdiction or protectorate of any 



Regina v. Vcs 

AND OtUEBS. 

, Harding J. 



292 QUEENSLAND JUSTICE OF THE PEACE. 

Kegina v. Vos civilised Power. Consequently this order cannot apply to any 

AND OTHEEa. , , ^ , ... .,.,..,.. "^ 

place that is for the time being withm the jurisdiction or pro- 

Hardmg J. tectorate of any civilised Power. Going on, I find that although 
the order had a much larger application than what I am going to 
read, yet it says in the sixth clause that jurisdiction under ii 
shall be " exercised only in relation to the following parts of the 
limits of this order, that is to say : — 1. The groups of islands, 
so far as they are not within the jurisdiction of the German 
Empire. ... 2. Any seas, islands, and places which are 
not excluded by the fourth article of this order, and are situated 
in the Western Pacific Ocean, that is to say mthin the following 
limits : North, from 140 degrees east longitude by the parallel 
12 degrees north latitude to 160 degrees west longitude, thence 
south to the equator, and thence east to 149 degrees 30 minutes 
west longitude ; South, by the parallel 30 degrees south latitude ; 
West, by the meridian 140 degrees east longitude." I have 
worked that out with the map which I had in Court, and I find 
that this island of Malayta is within the specified limits. Conse- 
quently the order applies to the island, and by a subsequent 
section of the Act the jurisdiction to be assumed by any order 
is not to cover dominion by Her Majesty, so that the order on 
its face shows that this island is within its hmits, and being 
within its limits the island itself to which it applies must be not 
a dominion of Her Majesty ; and as the order is not to apply to a 
place for the time being within the jurisdiction or protectorate 
of any civilised Power, it must necessarily be outside the juris- 
diction or power of any other State. I think, therefore, that on 
the law Mr. Peez's objection is overruled. The Court must 
necessarily have notice of all things which its subjects must have 
notice of, and which they would be taken to have notice of at 
their own trial. Now each of these men in the dock has notice 
of the law, and is presumed to have actual knowledge of the law, 
and under this Act of Parliament and these regulations that is 
the law with respect to them. Now, could it for one moment 
be conceived that the prisoners are to know the law and the 
Judge is not ? That conclusion would be absurd, and I think 
that the Judge must be held to know this judicially. I sympathise 
to a certain extent with Mr. Peez in his argument that no metes 
and bounds have been proved. If a mountain had been men- 
tioned, the Court would have been unable without proof to ascer- 
tain what were the bounds of the mountain. But an island is 
land surrounded by water, and the moment one comes to the 



CEIMINAL EEPORTS, 1860-1907. • 293 

water they come to the limit of the land, and they can make Eegina v. Vos 

no mistake, and the Court takes judicial knowledge of that. 

I think that the Court has such information before itself that it Ha^iding J., 
•could find that island and the spot where this took place. So 
that I overrule Mr. Feez's main objection. As to the other 
point, that there is no evidence that the three islanders were 
■carried away without their consent, the onus by the section 
Tinder which they were being tried is thrown upon them. I 
think that if the Crown simply made a prima facie case of suspicion, 
the onus is thrown on the prisoners of clearing themselves and 
showing consent. I also agree that if the offence was committed 
by taking the islanders off the island, that that offence could be 
compounded afterwards, and that it would be necessary for the 
prisoners to show that the taking of these men from their islands 
was from the first inception with their consent. Whilst in the 
neighbourhood of the islands they were bound to be landed if 
after consenting they withdrew their consent. So that it is 
upon the prisoners right through. It was said with regard to 
Hall that there was no evidence of his connection with the trans- 
action from the beginning to the last. I think there is evidence ; 
the weight of it is of course for the jury. The prisoner Hall, 
having been mate on a ship, was a man in authority under the 
captain, and in authority over others when the captain was absent. 
I think that the fact that on a signal being made from the boats 
Hall went to these boats, and after he got to them, from his 
position as mate, it was his duty to satisfy himself of the state 
of affairs. I think that when Hall had persons under his com- 
mand — sailors and others — whose lives were in his hands, he was 
in a place where he might be attacked by natives and firearms, 
he ought at once to have satisfied himself of the position of affairs. 
Had he looked round it is scarcely possible to conceive but that 
he would have seen a man had been chopped in two parts of his 
body with an axe and was bleeding at the arm. Had he seen 
that, and it is for the jury to say whether he did or did not, it 
was clearly his duty to make inquiry into the case. If he did not, 
it was a prima facie case against him, and if he cannot discharge 
himself by showing that these men were there by their own 
consent — ^if the jury find these facts — why necessarily, a verdict 
of guilty follows. With regard to the prisoners Absalom and 
Dowsett, it is said that there is no evidence that they took part 
in the carrying away of these boys, or aided and abetted or 
counselled or procured the commission of the offence. No 



294 



QUEENSLAND JUSTICE OF THE PEACE. 



Begina v. Vos 

AND OlHEBB. 

Harding J. 



doubt there is evidence, but the weight of it is for the jury. They 
were sailors in the ship, boatmen in the boat, and under the 
command of others. So far they would probably only come in 
as accessories, unless it were proved that they knew the actual 
scheme to steal the men and they were actually taking part in 
it. But if they came as aiders and abetters and accessories, then 
they must have known of the crime they were taking part in ; and 
if they did not know, or how far they did know, would be matter of 
justification for them to the jury. With respect to the obeying 
of superior orders, if under the circumstances they thought or 
could have thought, or if the jury thought that they could have 
believed the persons commanding them were justified in ordering 
them to take away from these islands these men struggling and 
crying, and wounding their captors, well then they will go free. 
If the jury carmot think that they had any business to obey these 
superior orders, but ought to have at once thrown down their 
oars, and said, " We won't have any more to do with this," they 
would have to show consent on the part of the natives. Then, 
as to the prisoner Vos, there is direct evidence against him that 
Quisoolia offered to steal him men and he sanctioned it. If 
that is believed, well, there is ample evidence, but it is for the 
jury to decide as to its weight. I have satisfied myself, for the 
reasons I have given, that there was some evidence. Before I 
dealt with each case I advised the jury that the weight and the 
true value of that evidence is for the jury, and I do not wish 
the fact that I have picked out pieces here and there to have any 
influence with them. The question of the facts will be for them 
in a future stage of this case. I am satisfied that there is evidence 
on these points to go to a jury. I have judicial knowledge of 
and have declared the status of the island. Mr. Feez, I over- 
rule your objections. 

The prisoners were subsequently acquitted. 

Solicitors : O'Shea & O'Shea ; Winter & McNdb. 



CRIMINAL REPOflTS, 1860-1907. 



295 



[Brisbane Ceiminal Sittings.] 
REGINA V. KOVALKY. 

[6 Q.Ii.J. 219.— Note.— See now s. 613 of Criminal Code. See R. v. Roche (3 Q.L.J. 

139, ante p. 204.)] 

Criminal law — Arraignment — Deaf mute — Insanity. 

A person charged with murder was found mute by the visitation of God. A 
fresh jury was impanelled to try whether he was sane or not. Evidence was given 
that he bad not sufficient intellect to understand the proceedings so as to mal:e a 
proper defence, challenge the jurors, or comprehend the details of the evidence. 
HaBDiNG J. directed the jury, if they thought he had not sufficient intellect there- 
for, to find him insane. The jury did so, and the prisoner was ordered to be 
detained to be dealt with under The Insanity Act of 1884, Regina v. Pritchard (7 
C. & P. 303) followed. 

Inpormation against August Kovalky for murder. 

The prisoner, on being arraigned, stood mute. A jury was 
impanelled to try whether the prisoner was mute by malice or 
by the visitation of God. Medical and other evidence was given, 
and the jury found that he was mute by the visitation of God. 
A fresh jury was then impanelled to decide whether he was 
insane. 

Evidence was given that the prisoner was a deaf mute, and 
had not sufficient intellect to understand the proceedings of the 
Court so as to make a proper defence, to challenge the jurors, 
and comprehend the details of the evidence. 

Harding J. directed the jury on the authority of Regina v. 
Pritchard (7 C. & P. 303) that if they believed the evidence they 
should find the prisoner insane. The jury found that the prisoner 
was insane and could not be tried on the information. 

Harding J. directed the prisoner to be kept in strict custody 
in the Brisbane Gaol until he should be dealt with in the manner 
provided by The Insanity Act of 1884. 



1895. 
26th March. 

Harding J. 



Harding J. 



296 QUEENSLAND JUSTICE OF THE PEACE. 

[BUNDABEEG CbIMINAL SITTINGS.] 

REGINA V. MANY MANY AND OTHERS. 

[6 Q.L.J. 224.— Note.— Case referred to in K. v. Tim Crown (6 Q.L.J. 283, )post. 
See also R. v. Archibald (2 S.C.B. 47), ante p. 44 ; McNamara v. Edwards 
(1907 S.R.Q. 9), post.] 

1895. Criminal law — Evidence — Confession — Answers to questions put by 

mhApril. ^ pp^^gg constable after arrest— b% Vic, No. 23, S8. 2, 10. 

Harding J. ^ confession elicited by questions put to a prisoner by a police constable after 

arrest and without caution is admissible against the prisoner unless the answers 
have been induced by a threat or a promise. 

Regina v. Gavin (15 Cox 656) any Regina v. Male (17 Cox 689) not followed. 

Infokmation against Many Many, Forka, Narasamei, Miore, 
Ohasbiby, and Quitongtonga, Pacific Islanders, for the murder 
of a white man, whose name was unknown. 

Evidence was given of the finding of the body of a man, and 
several articles were found near the body and taken possession of 
by the police. The Crown proposed to give in evidence, state- 
ments made by each prisoner to a poHce constable after arrest 
and without caution being administered. The constable pointed 
out the articles to the prisoners separately and said, " You see 
them ? " The prisoners answered, " Yes ; belong 'em old fellow 
white man ; me altogether kill 'im." 

Scott, for the prisoners, objected, and submitted the police had 
no right to ask questions after arrest, citing Regina v. Bodkin, 
9 Cox, 403 ; Regina v. Gavin, 15 Cox, 656 ; Regina v. Male and 
Cooper, 17 Cox, 689 ; Regina v. Walker, 13 V.L.R. 469 ; and 
submitted the question was not affected by 58 Vic., No. 23, s. 10. 

Power, for the Crown, submitted there was no inducement, 
and pressed for the ruhng of the Court. 

Harding J. Habding J.: The Evidence and Discovery Act of 1867 was 

meant to be a code on the law of evidence for Queensland. Sec. 
64 of that Act dealt with confessions, and is identical with sec. 
11 of the New South Wales statute, 22 Vic, No. 7. Sec. 64 was 
repealed last year by The Criminal Law Amendment Act, and a 
new provision enacted, which now regulates the law under sec. 
10. This provision is that no confession shall be received which 
has been made under the influence of a threat or promise made 
by a person in authority. That re-enacts the old law, with this 
exception : that it leaves out the provision of the Act of 1867, 
which regulates a confession induced by an untrue representa- 



CRIMINA.L REPOBTS, 1860-1907. 



297 



tion, or a confession induced by a threat or promise made by any 
person whatsoever. Now the law provides that the threat or 
promise inducing the confession must be made by a person in 
aathority. When this law came into force in New South Wales 
the law in England was different from that cited by the learned 
counsel for the defence. In Roscoe's Criminal Evidence, 10th 
Ed., p. 51, it is stated that a confession is admissible in evidence 
where it has been eUcited by questions put by a person in author- 
ity. The law of England before 1867 is to be found in the case . 
of Eegina v. Thornton, 1 Mood, C.C. 27, also in Russell on Crimes, 
vol. iii., p. 472, and the cases collected in Archbold, 264-266 all 
contained the same ruling, till Regina v. Gavin, which was decided 
after the passing of the Colonial Act. In England, where there 
is no statutory law on the subject, it appears to me that the judges 
have been expanding the rule against the admission of confessions. 
The New South Wales statute was passed in 1858, before Separa- 
tion. So far as I know, it has been the constant practice here to 
■allow such answers to go in. I have frequently had occasion to 
comment on the impropriety of obtaining evidence in such a way, 
but I am certain the above has been my practice, and I have a 
strong recoUection of Sir Charles Lilley also having made it so. 
His charge to a constable in one case was, " Keep your eyes open, 
and say nothing." But he held that if a constable did ask any 
questions of a prisoner when under arrest, although it was morally 
wrong, the evidence was not inadmissible. It has been decided 
at least six times in New South Wales that such evidence is 
admissible. These cases are cited in Wilkinson's Magistrate, pp. 
118-119. In the case of Regina v. Spring and Mason, where the 
accused were charged with murdering one De Witt, the learned 
judge would have admitted the confession, had not the statement 
that induced it been untrue. That was as far back as 1860. I 
think, therefore, that as regards the law in the Colonies, the 
matter is res judicata. If it is not, I am perfectly willing to assume 
the responsibility of deciding it myself. I admit the evidence. 

The prisoners were convicted and sentenced to death. 

Solicitor : Thorburn. 



Beoina u. 
Many Many 
AND Others. 

Harding J. 



298 



QUEEISSLAND JUSTICE OF THE PEACE. 



1895. 
15th May. 

Chuhb J. 



Chubb J. 



[Chaktees Towers Criminal Sittings.] 

REGINA V. ROSS. 
[6 q.L.J. 261.— Note.— See now s. 619 of Criminal Code.] 

Criminal law — Murder — Practice — Statement of prisoner read to 

jury. 

A prisoner was allowed to read a statement to tbe jury after his counsel's address, 
and the Crown Prosecutor was allowed a reply on the new matter. 
Bcgina v. Shimmin (15 Cox 122) followed. 

At the Circuit Court, Charters Towers, held before Chubb J., 
in May, 1895, George Ross was tried for the murder of his wife, 
Annie Ross. At the close of the case for the Crown, Macnaughton, 
for the prisoner, announced that he did not intend to caU witnesses, 
but asked the Court to allow a written statement, signed by the 
prisoner, to be read to the jury before he addressed them on his 
behalf. 

Chubb J. : The prisoner is now, by The Criminal Law Amend- 
ment Act, 1892, a competent witness on his own behalf. Why 
cannot he give this statement on oath ? 

Macnaughton : He is in such a state of nervous anxiety that 
I do not think he is physically able to give evidence. In Regina, 
V. Blacks, 1880, Bowen J., on a trial for murder allowed this 
course. In Regina v. Doherty (16 Cox, 306), Stephen J. did the 
same, subject to the right of the prosecution to reply. 

Chubb J. : In Regina v. Milehouse (15 Cox, 622) Lord Coleridge 
C.J. says that it may be done after his counsel has addressed 
the jury, and that this was resolved by the majority of the Judges, 
in which he did not agree. The question was considered at a 
meeting of all the Judges liable to try prisoners, held in November, 
1881, and adjourned for further consideration. After this 
meeting. Cave J., in Regina v. Shimmin (15 Cox 122), allowed the 
prisoner to give his own version of the facts after his counsel had 
addressed the jury, subject to a right of reply by the prosecution 
on the new matter, and His Lordship said that this was the rule 
of practice intended to be followed in future. Now that the 
prisoner is a competent witness for himself, ought the practice 
to be continued ? I do not know of any settled rule in this Court 
one way or the other. For the present, therefore, I will follow 
Regina v. Shimmin, and allow the statement to be read after you. 
have addressed the jury. 



CRIMINAL REPORTS, 1860-1907. 



299 



MacnaugUon then addressed the jury, after which the prisoner's Eeoina^Boss, 
statement was read by his counsel and handed to the associate. 
Jameson rephed for the Crown. 
The prisoner was convicted of manslaughter. 



[ROCKHAMPTON CIRCUIT COUET.] 

REGINA V. WILLIAM TRACEY. 

[6 Q.L.J. 272.— Note.— 29 Vic, No. 11, ss. 15 and 16, are repealed, see now s. 410 of 
Criminal Code as to definition of loaded arms to same effect as s. 16 of repealed 
Act (29 Vic, No. 11).] 

Criminal law — 29 Vic, No. 11, ss. 15, 16 — Attempt to discharge 
a loaded arm — Failure of attempt from want of priming or 
other cause. 

A revolver, loaded in some of its chambers, and capable of being; discharged if 
the trigger is drawn a sufficient number of times, is a loaded arm within the 
meaning of 29 Vic, No. 11, s. 16. 

The prisoner drew the trigger of a six-chambered revolver, which was loaded in 
three consecutive chambers, three times, the hammer falling upon the empty 
chamhers. Before he had time to draw the trigger a fourth time the weapon was 
knocked oat of his hand. 

Held, there was evidence of an attempt to discharge loaded arms. 

The information against the prisoner was under 29 Vic, No. 11, 
s. 15, for attempting to discharge loaded arms with intent to 
murder. 

Power for the Crown. 

Pattison for the prisoner. 

It appeared that the prisoner, on the 19th May, had been 
drinking and fighting with another man in the yard of an hotel 
at Barcaldine. There was a large crowd of men in the yard. 
The prisoner had knocked down his opponent, who rose, and 
was about to renew the struggle, when the prisoner drew from his 
belt a six-chambered self-acting repeating revolver, loaded in 
three consecutive chambers, and pointed it at the -crowd. At 
this moment a police constable in plain clothes rushed through 
the crowd, and cried, " Stop that, Tracey ! " The prisoner then 
pointed the weapon at the constable's breast, and said, " Stand 
back, or I'll put a ball through you," and immediately drew the 



1895. 
Mth September. 

Chubb J. 



300 

Regina v. 
William TBACBt. 



Chubb J. 



QUEENSLAND JUSTICE OF. THE PEACE. 

trigger three times. Three distinct cHcks of the hammer faUing 
on the chambers were heard, but the hammer having fallen on 
the unloaded chambers, it was, of course, not discharged. Before 
the prisoner could draw the trigger again the constable closed 
upon him, and knocked the weapon out of his hand. Upon 
examination, it was found that the next pull of the trigger would 
have caused the hammer to fall on a loaded chamber. 

The question was raised whether the revolver was a loaded 
arm within the meaning of the statute, and whether there was 
evidence of an attempt to discharge it. 

Chubb J. referred to Regina v. Jackson, 17 Cox, 104, per 
Charles J., and said he was of an affirmative opinion on both 
points, but would, if necessary, reserve the questions for the 
consideration of the Full Court. 

The prisoner was acquitted. 



1895. 
2nd December. 

Griffith CJ. 



[Brisbane Criminal Sittings.] 
REGINA V. FREEMAN. 

[6 Q.L.J. 281. — Note. — As to challenge, see now s. 611 of Criminal Code. As 
to Crown showing cause for challenge, see R. v. Shaw (7 Q.L.J. (N.C.) Ill), 
post. Case followed in R. v. Wardell (9 Q.L.J. 49), post, and R. v. Johnstone 
(1907. S.R.Q. 155), post] 

Trial on criminal charge — Jurors — Challenges — Order to stand by 
— Proceedings in absence of jury — Evidence — Dying declaration. 

A juror coming to the book to be sworn had put out his hand and had touched 
but not grasped the book, when he was called upon by the Crown to stand by. 

Held, that that the order to stand by was not too late. 

The time during the empanelling of a jury at which the Crown shall show cause 
for their challenge is in the discretion of the Court. 

The whole of the proceedings in a criminal trial must be in the presence of the 
jury. 

On the trial of A for murder, a statement by the deceased person B was tendered 
as a dyin^ declaration. At the time of her making the statement B was in danger 
of her life from blood-poisoning, of which she died five weeks later. She was 
informed by her medical attendant that she would never recover. She said, " Let 
me die." A magistrate was then brought, who said to her, "Are you sure you will 
never recover?" She said, "Yes." She then made the statement in question, 
which was reduced into writing by the magistrate. He then read the statement 
over to B, and she said it was correct. The magistrate then said, "Do you expect 



CRIMINAL ■ REPORTS, 1860-1907. i 801 

ever to recover?" B said, "No." The magistrate then said, "This is your Eegina v. 

dying declaration, will you sign it ? " B signed it. Fbeeman. 

Both before and after the making of the statement B asked her nurse, "Do you 
think I shall die ? " The nurse said, " No. " 

The statement contained the words, "Being in a serious state and not expecting 
to recover." 

Held, that the statement oould not be admitted. 

Trial of Howard Freeman on a charge of the murder of 
Katherine Noble Crofton, before Griffith C.J. and a jury, at the 
Brisbane Criminal Sittings. 

Power appeared to prosecute. 

Lukin for the prisoner. 

During the empanelling of the jury, a juror, Frederick Webb, 
was ordered by the Crown to stand by. Mr. Lukin objected that 
challenge was too late. 

On inquiry from the tipstaff and the juror himself, it appeared 
that the latter had put out his hand towards, and had touched 
the book, but that it was still entirely resting in the officer's hand 
when the juror was called upon to stand by. 

Power referred to Roscoe, p. 197, and to Joy on Confessions, 
p. 217. 

Griffith C.J. : I think the challenge was in time. The juror 
will therefore stand by. 

When the jury panel had been gone through twice, only ten 
jurors had been sworn, the prisoner's counsel having peremptorily 
challenged seventeen jurors. The other jurors had been ordered 
to stand by. The first of these jurors was then again called, 
and was again ordered by the Crown to stand by. 

Lukin : This is the third time of calling the panel. The Crown 
can now only challenge for cause. 

Power : The Crown need not show cause for their challenge 
until it appears that a jury cannot be empanelled without recourse 
to the jurors ordered to stand aside by the Crown. 

Griffith C.J. : The judgment of Bramwell B., in Mansell v.. 
Regina (D. & B., 375) is directly in point. I will follow his^ 
opinion, and I therefore hold that the direction to stand by at 
this stage is to be considered as an application to the discretion 
of the Court to allow the assignment of cause for the Crown's 
challenge to be postponed. As there are still some twenty 
jurors unsworn, I will allow the assignment of cause to be post- 
poned accordingly. 



302 QUEENSLAND JUSTICE OF THE PEACE. 

Eegina v. During the trial Lukin wished to cross-examine witnesses as 

^ ■ to the admissibility of a statement tendered by the Crown as 

evidence against the prisoner, and proposed to do so in the absence 
of the jury. 

Griffith C.J. : I do not think that such a course can be 
followed. The jury must, I think, be present throughout the 
whole of the proceedings. 

A statement made by the deceased was tendered by the Crown 
as a dying declaration. 

The circumstances of the making of the declaration appeared 
by the evidence of Dr. Budgett and J. W. Ayscough, and were 
as above set out. 

Lukin objected to its reception, and cited R. v. Osman (15 Cox, 
C.C. 1), R. V. Gloster (16 Cox, C.C. 471), R. v. Smith (16 Cox, C.C. 
170), R. V. Forrester (4 F. & F. 857), R. v. Reaney (1 D. & B., C.C. 
156), 26 L.J. (M.C.) 43). 

Power referred to R. v. Reaney {swpra). 

Griffith C.J. Geiffith C.J. : I have had some difficulty in coming to a 

conclusion on the evidence whether at the moment the deceased 
made the statement she had a settled and hopeless expectation of 
death, or whether at that time she still entertained some slight 
hope that she might recover, or at any rate, would linger for some 
considerable time. In the case of R. v. Reaney (1 D. & B., C.C. 
156), which has been cited by counsel for the defence, it was laid 
down that the question turned upon the state of the person's 
mind at the time of making the statement rather than upon the 
expected interval before death. In that case it is to be observed 
that the patient was suffering from a broken spine, a mortal 
injury, and knew that he must die. In this case I believe the 
words used at the time of the declaration were substantially 
as described by Mr. Ayscough and Dr. Budgett. Ayscough's 
evidence is that he said to Mrs. Crofton, " You are not expected 
to recover ; we have come to take your dying statement ; you 
appear to be very ill ; do you ever expect to recover ? " She 
replied, " No." And that after he had taken the statement he 
said, " This is your dying statement ; do you expect to recover ? " 
and that she again replied, " No," Dr. Budgett thinks the 
question might have been in this form, " Are you sure you will 
never recover ? " To which she replied, " Yes." For my own 
part I do not pay much attention to the supposed exactness 
of verbal recollections of conversations related after a considerable 



CRIMINAL REPOETS, 1860-1907. 



303 



interval of time. In Reaney's case a good deal of reliance was 
placed in argument upon the word " ultimately," as in this case 
upon the word " ever." I have come to the conclusion, after 
considerable fluctuation of opinion, that at the time Mrs. Crofton 
made the declaration she believed that her illness was fatal, and 
that she would probably never get well. But I do not think she 
thought that death was actually impending. I think she had 
some sort of lingering hope of recovery, and I am confirmed in 
that view by the initial words of the statement itself, namely : 
" Being in a serious state and not expecting to recover." Under 
aU circumstances I do not think that the deceased woman had 
at the time when she made the statement such a belief in the 
imminence of her death as to render the statement admissible 
as a dying declaration. I therefore reject the evidence. 

The prisoner was acquitted. 

Solicitors for prisoner : O^Shea & O^Shea. 



BeQINA I'. 

Fbebmak. 
Griffith C.J. 



[Full Court.] 
REGINA V. TIM CROWN. 

16 Q.L.J. 283.— Note.— See also R. v. Archibald (2 S.C.R. 47, ante p. 44 ; McNamara 
V. Edwards (1907 S.R.Q. 9), post ; R. v. Murphy (5 Q.J.P.R. 86).] 

Grown case reserved — Evidence — Admission made by prisoner 
after arrest in answer to questions by a constable — Criminal 
Law Amendment Act of 1894, s. 10. 

A, having been arrested on a criminal charge, made a statement implicating B in 
the charge. B was afterwards arrested, and the arresting constable, in A's presence, 
read over A's statement, which had been reduced into writing, to B. During the 
reading of the statement B made a farther statement to the constable. 

Held that B's statement was admissible against him. 

R. V. Tlwrnton (1 Moo. C.C. 27), R. v. Rogerson (9 S.C.B. (N.S.W.) 234), 
and R. v. Many Many (6 Q,L. J. 229) followed. 

R. V. Thompson (1893, 2 Q.B. 12) distinguished. 

Crown Case Reserved by Mr. Justice Chubb at Mackay 
Circuit Court. 

The prisoner, Tim Crown, who was a Polynesian, was charged 
with several other Polynesians, at the Mackay Circuit Court, 
with wounding with intent to commit murder, and on a second 
count with wounding with intent to do some bodily harm. On 



1895. 
December. 

Griffith C.J. 
Cooper J. 
Real J. 



804 



QUEENSLAND JUSTICE OF THE PEACE. 



Regina r. 
Tim Ckown. 



Griffith C.J. 



the evidence of , a police constable, it appeared that one 

of the prisoners, Loondooah, after arrest, made a statement to 
him, which alleged, inter alia, that prisoner Crown struck the 
wounded man about the head and face. Crown was afterwards 
arrested by the constable, who read over to him tjiis statement in 
Loondooah's presence. When he came to where Crown was 
said to have struck the wounded man, Crown said, " No ; I only 
held his head," and showed with his hands how he had held the 
injured man. This last statement was admitted by the learned 
Judge as evidence against Crown, but at the request of prisoner's 
counsel he reserved the question of its admissibility for the 
consideration of the Full Court. In the case stated by him for 
the consideration of the Full Court the learned Judge invited 
an expression of opinion by the Court as to the propriety of police 
officers putting questions to persons in custody. 

Stumm, for the prisoner : The arrest of the prisoner and the 
reading to him of the confession of his fellow-prisoner operated 
as a threat, and the confession was not a free and voluntary one. 
The whole policy of the law is against allowing a constable to 
obtain an admission from a prisoner by means of cross-examina- 
tion. The evidence should have been rejected and the conviction 
ought therefore to be quashed. He cited R. v. Male and Cooper 
(17 Cox, 689), R. V. Thompson (1893, 2 Q.B., 12), R. v. Gavin 
and others (15 Cox, 656), R. v. Bodkin (9 Cox, 403), R. v. Day 
(2 Cox, 209), R. V. Moore (2 Den. C.C, 522). 

Geiitith C.J. referred to R. v. Johnston (15 Ir. C.L.R., 60) 
overruling R. v. Bodkin (ubi supra) and to R. v. Thornton (1 Moo. 
C.C, 27). 

V. Power, for the Crown : The whole question is ^^hether an 
admission made by a prisoner to a constable after arrest is inad- 
missible within the terms of s. 10 of The Criminal Law Amendment 
Act of 1894. The practice in Queensland has always been to 
admit such statements, and the law was clearly laid down by 
Mr. Justice Harding in R. v. Many Many (6 Q.L.J. , 229) at 
Bundaberg this year. He also cited R. v. Rogerson (9 S.CR. 
(N.S.W.) 234). 

Griffith C.J. : The point raised in this case, as I understand 
it, is whether evidence of an admission made by an accused 
person can be received when that admission has been made 
whilst he was in custody and in answer to questions put by a 
constable or a person in authority. I understand that to be 



CRIMINAL KEPORTS, 1860-1907. 



305 



the point, although the statement or admission made in the 
present case was not made in answer to a distinct question. 1 
suppose, however, that there was a standing invitation to him to 
assent to or contradict the confession of another of the accused, 
which was being read over to him. It is objected that an 
admission obtained in this way is not admissible in point of law. 
As I understand it, the general rule as to admissions made by 
parties is that they are admissible, and they have sometimes 
been said to be the best evidence. With respect to admissions 
made by a person charged with a criminal offence, however, the 
rule is that the confession must be free and voluntary, or — in 
terms which I understand to be synonymous — that it must not 
be induced by threats or promises, using these terms in their 
fullest sense. I take it that that is an exception to the general 
rule of admissibility. If that is so, the statute of last year merely 
affirms the common law, which is that prima facie an admission 
is admissible, but in the case of a criminal charge it is not admis- 
sible if it has been procured by means of threats or promises. 
But it is not inadmissible merely because it is made by a person 
in custody in answer to questions put to him by a constable. 
That was held to be the law in England in the case of R. 
V. Thornton, as long ago as 1824. It was held to be the law 
in Ireland by eight judges out of eleven in 1864, and it was held 
to be the law in New South Wales in 1870, in the case of R. v. 
Bogerson. It has been followed as the practice in this colony 
always, as far as I know, and has been expressly held to be the 
law here in the case of R. v. Many Many, tried at the last Bunda- 
berg Assizes. It is true that in the case of R. v. Thompson, the 
latest case which was decided by the Court for Crown Cases 
Reserved, it was said that, in order that an admission may be 
admissible, it must be shown affirmatively that the confession 
was free and voluntary, that is, that it was not preceded by any 
inducement to make the statement held out by a person in author- 
ity. That proposition, as applied to the facts of that case, is no 
doubt perfectly correct. There had been a distinct inducement, 
in the nature of a promise, held out indirectly to the accused, 
and it had come to his knowledge, and had operated upon him. 
It was clear that that inducement having been held out, the ad- 
mission could not be received. I do not know whether it was 
intended by the Court to dissent from the previous decisions or 
the previous practice of the English Court. Certainly the case 
was not one in which the question now under consideration 



Regina v. 
Tim Cuown. 

Griffith C.J. 



306 



QUEENSLAND JUSTICE OF THE PEACE. 



Regina I). 
Tim Cbown. 

Griffith C.J. 



Cooper J. 



Efal J. 



really arose for decision. I do not think we can take this case 
as overruling the previous decisions or the practice of this Court. 
The real question is in each case, Was the confession induced by 
a threat or promise ? To my mind it is perfectly immaterial on 
■whom the onus of the proof rests — whether on the prosecution to 
show negatively that the admission was not, or on the prisoner to 
show affirmatively that it was, induced by a threat or promise, 
because I think it is the duty of the learned Judge to satisfy 
himself that it was not induced by any threat or promise. That 
being so, the only question for our consideration in this case is, 
Is the fact that the statement is made to a constable, in answer 
to questions put by him, proof that it was induced by a threat 
or promise ? I do not think it is. A confession may be made 
to a constable under the influence of a threat or fear, or terror, or 
it may be induced by a promise or by the expectation of benefit, 
or it may not. In the present case there is nothing but the mere 
fact that it was made to a constable after the arrest in the course 
of conversation. That is not sufficient to render it inadmissible. 
Prima facie I think it is admissible, and there is nothing to show 
that it was not admissible. As to the general question whether 
a constable should ask an accused person questions or not, I 
desire to express my concurrence with the observations made by 
Chief Justice Stephen in the case of R. v. Rogerson, in New South 
Wales, and with the similar observations made by Parke, B., 
long before. There may be cases in which it would be highly 
proper to put questions to a person in custody, and other cases 
where it would be extremely improper. On the abstract question 
as to the manner in which constables should discharge their duty, 
I do not feel called upon to express any opinion. I think the con- 
viction should be affirmed. 

CooPBE J. : I am of the same opinion, and I do not wish to 
express it in other words. 

Real J. : I concur in the judgment of the learned Chief Justice. 
On the question as to the propriety of police-constables cross- 
examining prisoners I do not wish to offer an opinion. I can 
conceive of circumstances under which it might be the right thing 
to do, and on the other hand, I can conceive of circumstances 
under which it might be most objectionable. 



Griffith C.J. 



Griffith, C.J. : The conviction will be affirmed. 



Griffith C J. 



CEIMINAL REPOETS, 1860-1907. 807 

[Brisbane Ceiminal Sittings.] 

REGINA V. PUZIL DEEN. 

[6 Q.L.J. 302.] 

Criminal law — Evidence — Murder — Husband and wife. l89o. 

mh and agth 
A man and a woman at Sydney, N.S.W., went through a ceremony which they November. 

helieved to be a marriage ceremony according to the Mahommedan faith, before a 
person whom they believed to be a Mahommedan priest, and they subsequently 
lived together as man and wife. 

The woman was tendered as a witness against the man on a charge of murder. 

Held, that the validity of the marriage must be determined by the judge as a 
question relating to the admissibility of evidence. The marriage being held to be 
invalid, the woman's evidence was admitted. 

Trial of Fuzil Deen before Griffith C.J., at the Brisbane 
Criminal Sittings, on the charge of murdering Koomal. 

Power, for the Crown, tendered ; Gul Shang as a witness. 

Macgregor, for the prisoner : I am instructed that this witness 
is the prisoner's wife. On that ground I object to her evidence. 

Power disputed the fact of the marriage. 

Griffith, C.J. : The objection raises a question of fact which _ 
must be determined by the Court before admitting or rejecting 
the evidence. 

Gul Shang, sworn on the voir dire, deposed that she was 
prisoner's wife, having been married to him in Sydney some five 
or six years previously. The marriage was performed by a 
Mahommedan priest, and the ceremony, which took place in 
the presence of several witnesses, was according to the rites of 
the Mahommedan faith. The witness was a widow at the time 
of her marriage with the prisoner, and had subsequently lived 
with him as his wife in the belief that they were properly married. 

Peter Macpherson (sworn on the voir dire and also in the case) 
deposed that he was a solicitor of the Supreme Court of New 
South Wales, and that, by .the marriage laws of that colony, 
with which he was acquainted, a marriage, to be legal, must be 
•solemnised by a minister of religion ordinarily officiating as such, 
and who is registered as a minister for celebrating marriages, or 
by a Registrar. He did not think a Mahommedan priest could 
be registered in New South Wales as a minister for celebrating 
marriages. There was no provision in the law of New South 
Wales for validating marriages made by unqualified persons who 
were believed by the contracting parties to be qualified. 



308 



QUEENSLAND JUSTICE OF THE PEACE. 



Begina v. 
FnziL Deen. 

Griffith C.J. 



GBiFraTH C.J. : I am of opinion that the mtness is not the 
prisoner's wife. She may therefore be sworn as a witness for 
the prosecution. 

Gul Shang was sworn accordingly. 



1896. 
March. 

Griffith C.J. 
Cooper J. 
Real J. 



[Full Court.] 
REGINA V. WHITEHOUSE. 

[6 Q.L.J. 313.— Note.— See now s. 398 (VI.) of Criminal Code. Case followed 
in R. V. Cawley (7 Q.L.J. 45), post.] 

Criminal law — Embezzlement — Proof of incorporation of CA)mpany — 

Grown Case Reserved. 

On the trial of W. for embezzling moneys, the property of the New York Life 
Insurance Coy. , evidence was given that a company carried on business in Brisbane 
under that name. No other evidence was given of the incorporation of the com- 
pany in Queensland or elsewhere, nor was the name of any member of the company 
proved. W. was found guilty. 

Held, on a Crown Case Eeserved, that there was no evidence of the existence of 
the company as a corporation as distinguished from a partnership, and that, as no 
evidence had been given of the name of any partner, the conviction must be 
quashed. 

Crown Case Reserved by District Court Judge Miller. 

On the case stated by the learned District Court Judge, it 
appeared that the prisoner was charged before him at Rock- 
hampton with the embezzlement of £10 10s., the property of 
the New York Life Insurance Coy. No evidence was given at 
the trial of the incorporation of the company in Queensland or 
elsewhere, but it was proved that a company was carrying on 
business in Brisbane under that name. The learned Judge 
allowed the case to go to the jury, but reserved, (among other 
points which were not decided by the Court) , the question whether 
there was any proof of the existence of the company as an insti- 
tution. The jury found the prisoner guilty. 

The prisoner, in person, submitted that there was no proof of 
the existence of the company as a corporation as distinguished 
from a partnership, and that, as there was no proof of the name 
of any partner, the conviction should be quashed. 

Byrnes A.G., and Blair for the Crown. The fact that the com- 
pany was carrying on business under the pame stated, and the 



CEIMINAL REPORTS, 1860-1907. 



309 



nature of that business, is some proof that it was not merely a 
partnership. They cited R. v. Langton (2 Q.B.D. 296). 

Real J. referred to R. v. Conndl (6 Q.L.J. 209). 

Griffith C.J. ; The first question reserved in this case is 
whether there was any proof of the existence of the New York 
Life Insurance Company as an institution, and that the prisoner 
was employed by that institution. I understand that to mean 
any proof of its existence as a corporation as distinguished from 
a, partnership. The prisoner was charged before the District 
Court with embezzling the money of the New York Life Insurance 
Company, and the only evidence of its corporate existence was 
that a company, caUing itself the New York Life Insurance 
Company, carried on business in Brisbane under that najjie. 
There was nothing else to show, and no other evidence to indicate,- 
that it was incorporated by the law of Queensland, or by the law 
of any other country. We know that in these days there is a very- 
large number of limited companies carrying on business in Aus- 
tralia, some incorporated by the law of Queensland, and some 
incorporated by the law of other countries. In the case of a 
limited company carrying on business in Queensland, the use of 
the word " limited " as part of its name, would, I think, in accord- 
ance with the case of R. v. Langton, be some evidence that the 
company is incorporated. In the case of other companies, a 
statement by a witness that a company was formed, say, in New 
York or New South Wales, or anywhere else, and was carrying 
on business by that name, would be some evidence that it was 
a foreign corporation and entitled to recognition by the laws of 
international comity. But in the case of an institution as to 
which there is nothing to show how or where it originated, the 
mere fact that it is called a company does not indicate with any 
certainty that it is anything -more than a partnership. We know 
that there are many partnerships, in Queensland and elsewhere, 
calling themselves companies, which are not incorporated. And, 
in the absence of any further evidence, either in the name of an 
institution or otherwise, than the use of the word " company," 
I do not think it is a legitimate inference that it is incorporated. 
On the evidence in this case it is equally probable that the com- 
pany in question is not a corporation but merely a partnership. 
In the case of a partnership, it is necessary that the name of one 
of the partners at least should be stated in the indictment as an 
owner, on a charge of embezzlement of property belonging to 



Eegina v. 

WBITEnODSE. 



Griffith C.J. 



SIO 



QUEENSLAND JUSTICE OF THE PEACE. 



Eegina v. 
Whitehouse. 

Griffith C.J. 
Cooper J. 
Beal J. 



the partnership. That objection seems to be fatal, and without 
expressing any opinion on the other points, I think that the 
conviction should be quashed. 

CooPEB J. : I am of the same opinion. 

Real J. : I also am of the same opinion. 

The conviction was quashed, and the prisoner discharged. 



1896. 
Jur.e, 

Griffith C.J. 
Seal J. 



[Full Couet.] 
REGINA V. EDWARDS, Ex parte HOWELLS. 

[7 Q.L.J. 25.— Note.— 53 Vic, No. 12, ss. 42, 43, repealed as to prosecutions, see 
now s. 661 (1) of Criminal Code to like effect. See B. v. Tidbuiy (8 Q.L.J. 
N.C. Ill), post.] 

Defamation law (53 Vic, No. 12), ss. 42, 43 — Costs of defendant 
in action for criminal libel — Recovery of costs by execution — 
District Courts Act of 1891 (55 Vic, No. 33), ss. 120, 161, 191 
— Prohibition. 

A successful defendant in proceedings in the District Court under s. 42 of the 
Defamation Law, may recover his costs by execution in the District Court. 

BicAardson v. WiUis (L.R. 8 Ex., 69) distinguished. 

A writ of prohibition will not issue to an officer of a court unless he is assuiaing 
to act in a judicial capacity. 

Application on behalf of Henry Howells to make absolute 
an order nisi addressed to the District Court, and to Francis 
Edwards, to show cause why a prohibition should not issue to 
prohibit any proceedings on an order made in the District Court 
on the above action on the 11th March, 1896. 

The facts appear fully in the judgment -of the learned Chief 
Justice on the application for the order nisi. 

April 24th. 

On the application for the order nisi,' 

Chambers for the applicant : On the facts the defendant is 
entitled to his costs, but not by the method by which he is now 
seeking to enforce them. In Richardson v. Willis (L.R. 8 Ex. 69) 
it was decided that defendant's costs in such cases were recover- 
able by action and not by execution. An order nisi to restrain 
the District Court Registrar should therefore be granted. 

C.A.V. 



CEIMINAL REPORTS, 1860-1907. 



311 



April 27th. 

Griffith C.J. ; The applicant prosecuted Edwards for 
defamation. The case was tried in the District Court at Gynipie, 
when the jury returned a verdict of not guilty. The defendant 
thereupon became entitled, under s. 42 of the Defamation Law, 
to recover from the prosecutor his costs of defence. On the 11th 
of March the Judge made an order that the defendant should 
have the costs, which were afterwards duly taxed by the Registrar 
of the Court, as prescribed by the Act. The defendant then 
obtained from the Registrar a warrant of execution for their 
recovery. Apphcation is now made for an order nisi for a 
prohibition to restrain the execution of the warrant, on the 
ground that payment of the costs payable under s. 42 can only 
be recovered by action, and not by summary execution, and the 
case of Richardson v. Willis (L.R. 8 Ex. 69) is relied on. It is 
asked that the writ should be addressed to the defendant and tho 
Registrar of the Court. Prohibition is a writ issued to restrain 
an excess of jurisdiction (or sometimes a wrongful exercise of 
jurisdiction), on the part of an inferior court acting in the assumed 
exercise of judicial functions. In the case of excess of jurisdiction, 
it is granted as soon as it appears that the inferior court has 
committed such a fault as to found the authority of the superior 
court to prohibit, i.e., as soon as it appears that the inferior 
court has acted without jurisdiction {Mayor of London v. Cox, 
L.R. 2 H.L. 239, 278). It is ordinarily addressed to the Court 
and the party, although if the Court assuming to exercise the 
jurisdiction objected to is out of the country, it may be addressed 
to the party alone [Ih. p. 280). But I know of no case in which 
it has been addressed to any officer of a Court unless he is assuming 
to act in a judicial capacity. And in my opinion the writ cannot 
be addressed to such an officer. The apphcation cannot there- 
fore be granted in the form in which it is made. It appears, 
however, tliat in the present case the Judge himself made an order 
for payment of the costs. Section 161 of the District Courts Act 
authorises the Registrar to issue a warrant of execution in any 
case in which a judgment is given by a judge for the payment of 
money. And the term "judgment" includes an order (s. 3). 
The Registrar appears, therefore, to have been prima facie justi- 
fied in issuing the warrant in obedience to the order. But if the 
objection taken by the applicant is a good one, the judge had no 
jurisdiction to make the order of 11th March, and as he was 
acting judicially when he made it, prohibition will lie in respect 



Kkoina tl. 
Edwabds, 
Kx parte 

IIOWJELLS. 



312 



QUEENSLAND JUSTICE OF THE PEACE. 



Eegina v. 
Edwards, 
Ex parte 

HoWElaLS. 



Griffith C.J. 



of that order. The objection is worthy of argument. A rule 
nisi may therefore go, addressed to the District Court and the 
defendant, to show cause why a prohibition should not issue to 
prohibit any proceedings on the order of 11th March. 

On June 2nd, before the Full Court (Griffith C.J., and Real J.), 

Lukin showed cause : This case is clearly distinguishable from 
Richardson v. Willis, where the Court was a Court of oyer and 
terminer, which had no power to issue execution. Reading s. 42 
of the Defamation Law mth ss. 120 and 161 of The District Courts 
Act of 1891, it is clear that the judge had power to make an order 
as to costs, and the Registrar to issue execution on such an order. 
The " proceedings," as to costs of which the Judge has power 
under s. 120 to make an order, are not to be construed as Umited 
to civil proceedings (In re Briton Mescal and General Life Assur- 
ance Association, 32 Ch.D. 503). Section 43 contemplates the 
recovery of costs by execution, and 0. XXXII., r. 8 (Crown side), 
which s. 191 of the District Court Act makes applicable to this 
case, gives the right of recovery by execution, of the costs of 
crim^inal and quasi-criminal proceedings. Further, even if the 
Judge had no power to make such an order, prohibition is not 
the proper remedy. He also cited R. v. Latimer (15 Q.B. 1077), 
Short on Mandamus, p. 46, Farrow v. Hay (33 L.J. Ex. 258). 

Macdonnell : Though Richardson v. Willis was a decision as 
to a court of oyer and terminer which had no power or machinery 
to issue execution, still that case refers to a general rule that the 
recovery of costs in such cases shall be by action. 

[Gbipfith C.J. : A court of oyer and terminer was appointed 
by special commission and came to an end when its work was done. 
There was no officer by whom a writ of execution could be issued. 
There was no question in Richardson v. Willis as to the propriety 
of the judgment awarding costs. An action would always lie on 
a judgment.] 

Section 120 of the District Courts Act is, under Part V., the part 
of the Act relating to civil proceedings, but s. 161 is under the 
general heading. The two sections cannot therefore be read 
together as urged by the defendant. 

Geiffith C.J. : This is an interesting argument, raising after 
all a small point. The present prosecutor, as he is called in these 
proceedings for prohibition, was the defendant in a prosecution 
in the District Court at Gympie for defamation. He was ac- 
quitted, and upon that acquittal was entitled, under s. 42 of the 



CEIMINAL REPOKTS, 1860-1907. 



313 



Defamation Act, to receive his costs from the then prosecutor. 
The learned Judge thereupon made an order that the defendant 
should have his costs of the prosecution. It is objected that the 
Jearned Judge had no power to make that order, that the rights 
of the defendant were determined by the statute, and that he 
must be left to such remedies as are provided by the statute. 
After hearing the argument, I have come to the conclusion that 
it is the function of a Judge, in pronouncing the judgment of the 
Court, to declare completely the rights to which the parties are 
entitled. The result of the acquittal in this case was that the 
•defendant became entitled to be discharged from the prosecution 
and to recover his costs from the prosecutor. The judgmcxit 
ought therefore to have declared his right in both respects. The 
form in which a right to recover costs is declared in a judgment" is 
T)y an award that the party entitled recover them from the other 
party. The learned Judge in the present case formally made 
that order. The order of the Judge was therefore right. He 
had jurisdiction, and it was his duty, to pronounce the judgment 
which he pronounced. The acquittal would indeed have been 
followed by precisely the same result even if he had not actually 
pronounced or used these words in court in his judgment, for 
when the formal judgment came to be drawn up the award of 
«osts would have been included. I think that disposes of the 
matter, because under s. 161 of The District Courts Act of 1891, in 
any case in which a judgment of a District Court is given for the 
payment of money, execution may issue. 
The rule must be discharged with costs. 

Real J. : I am of the same opinion and for the same reasons. 
SoHcitors for appellant : Chambers, Bruce cfc McNab. 
SoHcitois for respondent : Tozer, Conwell <Se Tozer. 



IIHGINA r. 
J'^DWARDS, 

Ex parte 

HOWBLLS. 

Griffith C.J. 



Beal J. 



814 



QUEENSLAND JUSTICE OF THE PEACE. 



1896. 
4th August. 

Griffith G.J. 
Cooper J. 
Seal J. 



[Full Coukt.] 
REGINA V. CAWLEY. 

[7 Q.L.J. 45 ; N.C. 20.— Note.— 29 Vic, No. 13, ss. 48 and 49 are repealed, see new 
s. 668 of Criminal Code. As to verdict when ownership uncertain, see s. 566 
(15) of Criminal Code.] 

Criminal law — Evidence — Proof of incorporation of company — 
Right of counsel to withdraw point previously asked to he reserved 
— Special case under Criminal Practice Act of 1865 (29 Vic, 
No. 13), ss. 48, 49 — Duty of Full Court in considering special 
case. 

On a trial of a prisoner on a charge of stealing a gelding and filly, the proper! y 
of " Meredith, Menzies & Co., Ltd.," e-vidence was given that the company carried 
on business under that name in Queensland, and that the manager in Queensland 
believed, but did not know of his own knowledge, that the company was registered 
as a limited company in Melbourne. 

Hdd, on a Crown case reserved, that this was sufficient evidence of the incor- 
poration of the company. 

B. V. Langton (2 Q.B.D. 296), if. v. Bower (5 N.S.W. W.N. 28), and E. v. White- 
house (6 Q.L.J. 313) followed. 

Counsel may at any time during a criminal trial withdraw a request for tie 
reservation of a question which they have at an earlier stage of the trial asked ta 
have reserved. 

Hdd by GRirFiTH C.J. and Cooper J. (Real J. dissentienie) that in dealing 
with a case stated under s. 48 of The Criminal Practice Act of 1865, it is the duty 
of the Full Court to consider such questions only as are distinctly raised upon 
the case. 

Per Cooper J. ; But where, on the facts stated in the case, there h4s been a 
manifest miscarriage of justce, the Full Court should intervene and repair the 
injustice, although the judge stating the case has failed to direct their attention 
to the point. 

Rbai J. : It is the duty of the Court to consider any questions of law that arise 
on the facts stated in the case, whether formally reserved or not. 

Special Case stated by the Judge of the District Court at 
Croydon, setting out the following facts : The prisoner Cawley 
was tried before the District Court at Croydon. The information 
contained two counts charging the prisoner with larceny, the first 
count laying the ownership of the stolen property, a gelding and 
filly, in Thomas NicoU and others, and the second count laying it 
in Meredith, Menzies & Co., Ltd. John Neal, the manager for 
the company, gave evidence as follows : — " Am manager of 
Milungra and Taldora stations. The stations belong to Meredith, 
Menzies & Co., Ltd. The company is registered in Melbourne. 



CRIMINAL EEPORTS, 1860-1907. 315 

The head office is there. The company was registered early last Eeg™a v. Oawlby 

year. I got the notice of the fact that a limited company had 

been formed in June. I altered my cheques from Meredith, 

Menzies & Co. to Meredith, Menzies & Co., Ltd. I signed " John 

Neal, pro Meredith, Menzies & Co., Ltd." Before that the station 

had belonged to a partnership — Thomas Nicoll, J. B. Nutting 

and others. Nicoll and Nutting are members of the firm. The 

registered brand of Milungra and Taldora stations was 7TT." 

In cross-examination the manager said : "I don't know of my 

own knowledge that the company is registered, but I have reason 

to beheve it is." 

At the conclusion of the evidence the prisoner's soUcitor asked 
the judge to direct the jury to acquit the prisoner, on the ground 
that there was no proof of the existence of the company as distin- 
guished from a partnership, and no proof of the name of any 
partner in such a partnership. The learned judge, relying on 
.B. V. Whitehouse (6 Q.L.J. 313), refused to direct an acquittal, 
and the solicitor then requested him to reserve the point for the 
consideration of the Full Court. 

The case stated that in his charge to the jury, the District 
Court Judge requested them, as there was no evidence of the 
precise date when the partnership merged into a limited company, 
or as to the precise date of the alleged stealing, to find an alter- 
native verdict if they found the prisoner guilty. The jury found 
that the prisoner stole the gelding, the property of Thomas Nicoll 
and others ; or, if not, that he stole the gelding, the property of 
Meredith, Menzies & Co., Ltd. 

Just as the judge was about to pronounce sentence, the prisoner's 
solicitor withdrew the point he had asked to have reserved. 

The prisoner was sentenced to four years' penal servitude, but 
the sentence was respited, and the judge stated this case, raising 
for the consideration of the Judges of the Full Court on the facts 
as above set out, the questions : (1) Was he right in refusing to 
direct the jury to acquit as requested ? (2) Can counsel withdraw 
a question which he has previously had reserved ? 

Lukin, for prisoner : The point raised in the court below as to 
the evidence of incorporation of the company, was good. There 
was no sufficient evi(Jence of incorporation. The case resembles 
that of R. V. Whitehouse (6 Q.L.J. 313), where the incorporation 
of the company was not proved. 

Cooper J. : Does not the second question settle the whole 
matter ? If counsel has power to withdraw a question he has 



316 QUEENSLAND JUSTICE OF THE PEACE. 

Eeoina v. Cawlet previously asked to have reserved, it seems to me there is nothing 
before this Court. 

Lukin : Counsel has not power to withdraw a question after 
having reserved it {R. v. Matthews, 1 N.S.W. W.N. 118). 

Griffith C.J. : Counsel often ask that points be reserved which, 
on a little further consideration, they see are untenable. Your 
contention would leave them no locus penitentice. 

Lukin : Better that than a miscarriage of justice. The case 
in this instance has been stated, and the prisoner is entitled to 
the benefit of it. The case shows further that the jury found an 
alternative verdict, and though the point was not specifically 
raised at the hearing, prisoner is entitled to profit by the defect 
in the finding. 

Cooper J. referred to R. v. Taylor (6 N.S.W. W.N. 147). 

Mansfield : On the question of the sufficiency of the evidence of 
the incorporation of the companj', the evidence given in this case 
is quite sufficient {R. v. Whitehouse, 6 Q.L.J. 313, and R. v. 
Langton, 2 Q.B.D. 296). 

Cooper J. referred to R. v. Bower (5 N.S.W. W.N. 28). 

Mansfield : Further, it is manifest that such an objection does 
not extend to the charge of stealing from individuals in the 
alternative count of the information. Counsel has power to 
withdraw a question previously reserved at his request {R. v. 
Taylor, 6 N.S.W. W.N. 147), and this Court will only consider the 
questions submitted by the learned District Court Judge. The 
case is stated relatively to those questions. 

Cooper J. : Exactly. The case is stated by the judge to bring 
out certain questions which he specifically states for our consider- 
ation, but non constat that if his mind had been directed to other 
points he might not have stated the case more fully, or even differ- 
ently. 

Mansfield : That is so ; and on the authority of R: v. Smith 
(Temple & Mews Rep. 214) the Court will not consider the question 
of the alternative verdicts, as that question is not raised in the 
case. 

Griffith C.J. Griffith C.J. : The points specifically reserved by the learned 

Judge in the special case stated by him are whether he was right 
in refusing to direct the jury to acquit the prisoner on the ground, 
substantially, that there was no evidence that the company 
called Meredith, Menzies and Company, Limited, was a corpora- 



CRIMINAL REPORTS, 1660-1907. 817 

tion, and whether counsel can withdraw a question which he has Begin a v. C awley 

previously asked to have reserved. The prisoner was indicted Griffith C.J. 

for larceny of a horse, charged in the alternative as being 

the property of Thomas NicoU and others, and the 

property of Meredith, Menzies and Company, Limited. The 

evidence as to the incorporation of Meredith, Menzies and 

Company, Limited, was that they carried on business under 

that name in Queensland, and that their manager beUeved the 

company was registered in Victoria. The learned District 

Court Judge held that that was sufficient evidence, and he refused 

to direct the jury as he was requested to do. On the face of it, 

I do not see the point of the objection, because it did not go to 

the first count of the indictment at all ; but as the point has 

been submitted, we must answer it. I am of opinion that the 

evidence given was sufficient evidence of the incorporation of 

the company. It was so held in R. v. Langton (2 Q.B.D. 296) in 

England ; it was so held in the case of R. v. Bower (5 N.S. W.W.N. 

28) mentioned by my brother Cooper ; and this Court intimated 

its opinion to the same effect in the case of R. v. Whitehouse (6 

Q.L.J. 313) last year. The learned Judge was, therefore, quite 

right in refusing to direct the jury to acquit on that ground. 

As to the question, " Can counsel withdraw a question which 

he has previously had reserved," it appears that counsel thought 

the point raised was untenable, but that the learned Judge 

doubted whether the request to reserve it could be withdrawn. 

It is quite clear that he would not have stated the case had it 

not been for that doubt. Now, s. 48 of the Criminal Practice 

Act provides that when a person has been convicted of treason, 

felony, or misdemeanour before any court of criminal jurisdiction, 

the Judge before whom the case is tried shall, on the application 

of counsel made during the trial, or without such application 

in his own discretion, reserve any question or questions of law 

which have arisen on the trial for the consideration of the Supreme 

Court. So that the conditions are three — the question or questions 

must arise during the trial, there must be a conviction and a 

reservation of the questions after the conviction. In the case 

of questions reserved on the application of counsel, the application 

must be made when the time arrives for reservation, that is, after » 

the conviction. I think that an application once made during 

the trial may be considered as a standing application up to that 

time, and that it may be withdrawn at any time before effect is 

given to it. That has been the practice, and I cannot entertain 



318 QUEENSLAND JUSTICE OF THE PEACE. 

Begina v. Cawley any doubt on the point. If the District Court Judge had been 
Griffith CJ. of that opinion, it is quite clear that we should not have been 
troubled with this case. And as, in my opinion, there is nothing 
in the previous point, it seems to me that, on the questions reserved 
in the special case, the conviction must be affirmed. Another 
point has been suggested in the course of the argument which 
has given rise to much more difficulty, and that arises from the 
statement in the case by the learned District Court Judge that, 
in consequence of there being no precise evidence as to the exact 
date when the partnership merged into a Umited company, 
or as to the precise date of the alleged stealing — that is, I suppose, 
whether it was before or after the incorporation — he asked the 
jury to find an alternative verdict ; and the further statement 
that the jury found that the prisoner stole the gelding, the 
property of Thomas NicoU and others, or, if not, that he stole 
the gelding, the property of Meredith, Menzies, and Company, 
Limited. It has been suggested that that finding should be read 
to mean that the jury did not know whether it was the property 
of NicoU and others or of Meredith, Menzies, and Company, 
Limited. For my own part, I do not so read it. The con- 
struction — although, for the reasons I will give later, I think this 
is quite immaterial — that, I think, is to be put on these words, is 
that the jury found the horse was the property of NicoU and 
others when it was stolen, but that, if they were wrong in that 
finding, it was the property of the company. If that is so, it 
would be a finding that it was the property of NicoU and others. 
But it was urged that the statement in the case meant that the 
jury did not know whose property it was, and that, as that 
appears on the face of the case, we ought to consider whether the 
prisoner was properly convicted. Now, our authority is con- 
ferred by the 49th section of the Criminal Practice Act, which 
provides — " The Judge .... shall, thereupon state in a 
case signed in the manner now usual the question or questions 
of law which shall have been so reserved, with the special circum- 
stances upon which the same shall have arisen, and such case 
shall be transmitted to the Judges of the Supreme Court, and the 
said Judges shall thereupon have full power and authority to 
hear and finally determine the said question or questions." 
That is the section which confers our authority, and I think 
it Umits our authority, and I think it Umits that authority to 
deaUng with the question or questions that have been reserved. 
No question was reserved as to whether the direction to the 



CRIMINAL REPORTS, 1860-1907. 



319 



Kegina v. Cawley 



jury was erroneous, or whether the form of verdict was erroneous, 
nor, indeed, do we know exactly what the form of the verdict Griffith C.J. 
was. Probably it was recorded as a verdict of guilty on both 
counts. The view I take is confirmed by r. 5 of 0. XXXI. 
(Crown Side Rules), which provides that every case stated for 
the consideration of the Court shall state the question or questions 
of law, and such facts only as are material to raise the questions 
submitted. The duty of the Judge in stating a case, therefore, 
is to confine hiniseK to the facts material for raising the question 
or questions of law submitted. The learned Judge of the District 
Court, in stating this case, had in his mind, " Was I right in 
refusing to direct the jury to acquit, as requested ? Can counsel 
withdraw a question which he has previously had reserved ? " 
Any other facts were irrelevant, and his mind was not specially 
directed to them. In construing the language used in a case 
stated, or, indeed, in dealing with language used by anybody, 
it is very important to know the subject dealt with. It may be 
that if the point sought to be raised had been about the form of 
the verdict, or the form of the direction given to the jury, the 
Judge would have stated the case very differently. It would 
have been his duty to have gone more into detail, and on the 
facts so stated it might have turned out that there was nothing 
in the point, or it might have appeared that the prisoner was 
wrongly convicted. But that is mere matter of conjecture, 
and as it is not one of the questions raised in the case, I do not 
think we should be right in acting upon any particular construc- 
tion of the language used, or in sending the case back to the 
District Court Judge for what would be a mere speculative inquiry 
whether, on the whole, this prisoner should have been convicted. 
I do not think that is our duty. I think our duty is merely to 
consider whether the points raised at the trial were properly 
decided. I need hardly say that a Judge cannot ask a jury 
to return an alternative verdict ; that is to say, cannot ask a 
jury, who are not sure whether the prisoner committed either 
of two crimes charged against him, to find that he committed 
one or the other, though they do not know which. No point of 
that kind is expressly raised here, and I do not think we ought 
to go beyond the questions raised, or to send the case back, to 
the Judge to see whether there was any other point in the case 
upon which the prisoner might have been acquitted. If it 
manifestly appeared on the case that injustice had been done 
we might perhaps be justified in interfering. For these reasons 
I think the conviction must be affirmed. 



320 QUEENSLAND JUSTICE OF THE PEACE. 

Begina r. Cawley Coopbe J. : I am of the same opinion, and I desire only to 
Cooper J. ^^^ * word or two on the question which has not been submitted 
to us for decision by the learned Judge, but which has been raised 
by argument in the case before us to-day — that his Honor, the 
learned Judge, was right in asking the jury to return an alternative 
verdict on the ownership of the property which was stolen. I 
think that if the learned Judge did direct the jury to find an 
alternative verdict on this question that that was wrong direction, 
and although I am entirely of opinion with the Chief 
Justice, that we have no right to go outside the questions which 
have been submitted to us in the special case, yet if upon the 
statement of the learned Judge it appeared that he was wrong 
in his direction, and that substantial injustice had been done^ 
I think this Court should take notice of it and repair the injustice. 
I do not think, however, that any such appears clearly in this- 
case, but if the learned Judge, as I said before, did direct the 
jury to find an alternative verdict he was MTong. It does not 
appear that any objection was taken to his direction at the 
trial, nor does it appear to me upon his statement that the jury did 
actually return such a verdict. They found that the property 
was the property of NicoU and others. That is a definite finding. 
And then they say " if it is not, if there is not sufficient evidence 
to support that, or if NicoU and others were members of an 
incorporated company at that time, then we find that the property 
was the property of the incorporated company." I do not think 
that that is what we would call an alternative finding. It is quite 
possible that if the record were looked at (it is not before us as 
we have to confine our attention to the special case), we might 
find that jury's verdict was " guilty upon both counts." I 
thought from some of the arguments raised that we ought to 
send back this case in order to get some information on that 
subject, but now I do not think that is necessary. I think we 
ought to confine ourselves to the questions submitted for our 
decision, and on these questions I entirely agree wdth the judg- 
ment delivered by the learned Chief Justice. 

Real J. Ebal J. : I agree with my brother Judges as to the right 

to withdraw and also with reference to there being evidence 
of *the incorporation of the company to authorise the Court 
in answering the second question, that the Judge was not wrong in 
refusing to direct the jury to acquit, but I regret to say I am 
compelled to differ as to the right of this Court upon the case 
submitted to it. Section 48, as read by my brother the Chief 



CKIMINAL EEPOETS, 1860-1907. 821 

Justice, authorises the Judge to reserve any question, and to R'"*iNAt\CAWLEY 
state that question in the shape of a special case. The Rules direct Eeal J. 

him to confine the facts to those necessary, to raise the question 
he desires to reserve. In this case the learned Judge does not 
purport to reserve any question as from himself. He purports 
in the categorical question that he puts at the end to merely 
reserve the question raised by counsel. The question as to the 
power of withdrawal was raised by himself. I read s. 48 as 
authorising the Judge to reserve any question, and I think that 
when the Judge has stated any facts to us in the shape of a special 
case, the mere statement of these facts reserve for our considera- 
tion every question clearly arising upon that statement. Then 
it becomes necessary that we should look at the case. If any 
questions of law clearly arise upon these facts stated, it is for us, 
in my view, to dispose of them. The mere fact that the case does 
not say " I reserve this or that " does not lessen our powers. 
If there is any ambiguity, if the Judge places the case before us 
in such a manner as to show that the statement of facts is not 
full and complete, but only a statement for the purpose of shedding 
light upon categorical questions, then, of course, they may be 
possibly disregarded ; but when there are clear and specific 
statements of facts, about which there is no ambiguity, then 
with my brother Cooper I agree that it is the province of this 
Court to see that justice is carried out. I have the misfortune to 
difPer with my brother Cooper as the clearness with which the 
facts in this particular case are stated. To my mind there is 
no ambiguity whatever. The charge against the prisoner was of 
stealing the property of certain individuals described as a partner- 
ship, and the second count charged him with stealing the property 
of a corporation. The learned Judge says distinctly that there 
was no evidence to show which set of persons — that is, the cor- 
porative or the individuals — owned this property. Now in a 
charge of larceny it is essential that the ownership of property 
should be proved, and if there was no evidence to prove which 
of two persons OMned it, then there could not be a conviction. 
The learned Judge, to get rid of that difiiculty, told the jury 
to find a verdict in the alternative ; and to my mind that is an 
order which he could not make. Of course, my brother Cooper 
takes a different view. He considers that if the jury, with the 
direction of the Judge, found substantially that the stolen 
property was the property of John Smith, but if not it was cer- 
tainly John Brown's, then there might be some question. On 



322 QUEENSLAND JUSTICE OF THE PEACE. 

Eegina v. Cawley jjjg direction of the learned Judge it seems to me that the jury 
Beal J. found that the animals were either the property of Nicoll and 

others, or they were the property of the limited company, and 
their finding must be read in conjunction with the Judge's charge, 
and in order that a jury of honest men could give that finding 
it was not necessary that the whole twelve of them should be 
satisfied with the ownership. To my mind it must be a finding 
of twelve jurymen to convict the prisoner, and ihey must find 
every fact essential to the conviction. On the statement by 
the learned Judge in this case it appears to me that that was not 
done. Of course, it is of no importance, in consequence of the 
view taken by my brother Judges ; but had they agreed with me, 
and had doubt arisen as to the meaning of the words used by the 
learned Judge as to whether they expressed him with sufficient 
clearness, the case should be sent back to him. But to my 
mind there is no ambiguity. He says " In my charge I directed 
the jury to find an alternative verdict, if they found the prisoner 
guilty." The jury found that the stolen property was the pro- 
perty of Thomas McoU and others, and if not it was the property 
of Meredith, Menzies and others. That meant, if they had found 
what are called specific facts, that " the prisoner stole the par- 
ticular gelding mentioned in the information, and that particular 
gelding was either the propertyof Nicoll and others, or it was 
the property of the corporation, and we don't know which." 
If they had found that, it seems to me, we would have been 
bound to say the verdict is bad. The only basis on which I 
think we have the right to deal with this case is that the Judge 
must be deemed to have reserved aU questions of law which he 
puts in his special case clearly and unambiguously, and this 
Court should not allow injustice to be done. In that view of 
this case I think that the learned Judge was wrong, and that 
the finding was bad. The only way it could have been done, 
probably is as in the case of B. v. M'Gee (6 Q.L.J. 151). Had 
the jury found them guilty on both counts, and had the District 
Court Judge taken the precaution, as the learned Judge in that 
case, to give separate sentences on each count, this Court could 
perhaps set aside the sentence on one count and allow the sentence 
on^the other to stand. But had he given a joint sentence, as 
has been done in this case, I don't see how the sentence could 
stand, because it would be impossible for this Court to say how 
much of the sentence was with reference to the good finding and 
how much with reference to the bad. I think this is a very 



CEIMINAL REPOETS, 1860-1907. 323 

important decision with reference to the point whether or not R^oina^awley 
"this Court is bound to confine itself within the categorical questions Real J. 

put at the end of any case stated by a learned Judge or by justices. 
I think that the Court is not so bound ; and I think that in this 
■case all the circumstances exist which have been referred to by 
my brother Cooper as necessary to enable this Court to deal with 
the matter. For that reason I think that the conviction should 
be quashed. 

Gbiffith C.J. : The decision is that the conviction will be Griffith C.J. 
affirmed. 

Solicitor for prisoner : R. J. Leeper. 



[Full Couet.] 

REGINA V. WISHER AND ANOTHER. 

17 Q.L.J. 52 ; N.C. 23.— Note.— 29 Vic, No. 6, ss. 41 and 48 are repealed, see now 
ss. 409-412 of Criminal Code. As to reservation of point by Judge, see now 
s. 668 of Criminal Code.] 

Crown case reserved — Larceny Act of 1865 (29 Vic, No. 6), ss. 41, 
48 — Charge and sentence for different offences — Right of 
District Court Judge to state special case. 

W. and L. were charged by information at the District Court, Rockhampton, 
with robbery. The evidence showed that they had committed the oflfence in 
■company. They were found guilty and sentenced to terms of imprisonment, 
and to a whipping and a flogging respectively. No objection was taken to the 
■sentence by counsel for prisoners. The section under which they were charged 
{s. 41) does not authorise whipping or flogging as a punishment, although s. 48, 
dealing with robbery in company, does so. The error was not discovered until 
after the sittings of the Court had been closed, when the District Court Judge, 
discovering the error, reopened the Court, respited the sentences, and of his own 
motion stated a case for the Full Court. 

Hdd, that the sentences must be amended by striking out so much thereof as 
directed the prisoners to be whipped or flogged. 

Held, also, that the District Court Judge had power to state the case, although 
jio formal reservation of the point had been made at the trial. 

Cbown Case Reserved by Judge of the District Court at 
Rockhampton, setting out the facts appearing in the head- 
note, and raising the questions : (1) Whether he had power to 
pass the sentences he did pass ? (2) Whether the whole or any 



1896. 

4th August. 

Grigilh C.J. 
Cooper J. 
Real J. 



324 



QUEENSLAND JUSTICE OF THE PEACE. 



Eegina w. WisHEB portion of the sentences Avas valid ? (3) What order did the Full 
AND Another. i, , . ■, ^ i „ 
Court think fit to make ? 

The facts appear fully in the judgment of the learned Chief 
Justice. 

Butledge, for the Crown : This is a special case raising a question 
as to the validity of sentences passed by him on two prisonera 
at Rockhampton. 

Cooper J. : But how does this case come before us ? I see 
by looking at the case that the prisoners' counsel did not ask 
for the reservation of any points at the trial, and the Judge can 
only state a case reserving points raised at the trial. 

Hutledge : The Crown were prepared to adopt that argument, 
but it appears on the authority of B. v. Brown (24 Q.B.D. 357) and 
B. V. Pieremont (2 Q.L.J. 93) that the learned District Court 
Judge had power to state the case. Assuming, then, that the- 
case is properly before the Court, the Crown submit that the 
words of the information are sufficient to make it a good informa- 
tion for an offence under s. 48 of the Larceny Act, for which 
offence whipping and flogging might be inflicted. In any event 
that part of the sentence which imposed imprisonment should 
not be invalidated. 

■ Prisoners (in person) offered no arguments. 

Griffith C.J. Gkiffeth C.J. : The prisoners were jointly indicted at the 

District Court at Rockhampton upon a charge of assaulting one 
Richard Jack, and violently stealing from him a certain sum of 
money. It appeared on the evidence that they committed the 
offence in company, and they might have been charged under s. 
48 of the Larceny Act -with doing so. But they were not. If 
they had been charged with robbery in company they would have 
been liable under s. 48 to a much more serious punishment than 
can be inflicted under s. 41, under which they were charged. If 
the charge made against them necessarily meant that they com- 
mitted the offence in company, probably the sentence would 
have been correct. But it is quite clear that the offence of rob- 
bery may be jointly committed by two persons without being 
in company. One might have been an accessory before the fact, 
or might have been occupied in watching some distance off. 
Under those circumstances two persons might be found guilty of 
being jointly concerned in committing the offence. It is clear,. 
I think, that the offence of which the prisoners were convicted 
was robbery — not necessarily in company. They could therefore 



CEIMINAL EEPORTS, 1860-1907. 



325 



Griffith C.J. 



only be sentenced for that offence, and the punishment for that Kkginad. Wisher 

' jr ^^j, Another. 

ofience does not include flogging or whipping, which was part of 

the sentence. We have power to amend the, sentences, and I 

think the proper order to make under the circumstances is that 

the sentences be amended by remitting so much as directs the 

prisoners to be flogged or whipped. 



CooPEE and Real JJ. concurred. 



Cooper J. 
Eeal.l. 



[Brisbane Ceiminal Sittings]. 

REGINA V. LONGLAND. 

[7 Q.L.J. 56 ; N.C. 24.— Note.— See now s. 611 ol Criminal Code.] 

Criminal law — Juror — Time of challenge — Judge's right to dismiss 

jury. 

During the swearing of the jury, on the trial of a prisoner for murder, after one 
juror had been sworn, a juror being called came forward and took the book in his 
hand, and, the tipstaff having recited the oath to him, informed the Court that he 
was opposed to capital punishment and that, in the event of his being sworn, 
he would not consent, under any circumstances, to a verdict involving capital 
punishment. Counsel for the Crown then offered to challenge the juror for cause, 
but counsel for prisoner objected that the challenge was not in time. 

Gbimtth C.J., on the authority of Winsor v. The Queen (L.R. 1 Q.B. 390)> 
dismissed the jury so far as it had been constituted, and directed a fresh jury 
to be sworn. 

Semble, that a juror may be challenged at any time before he has done any act 
signifying his assent to taking the oath. 

Teial of Jonathan Longland on the charge of the murder of 
Mary Longland. 

During the swearing of the jury when one juror had been sworn, 
a juror being called came forward and took the book in his hand. 
After the tipstaff had recited the oath to him he objected to take 
it, saying that he was conscientiously opposed to capital punish- 
ment, and that in the event of his being sworn he would not con- 
sent, under any circumstances, to a verdict involving capital 
punishment. He further stated that he had objected to take the 
oath at the earliest time at which he thought he was permitted to 
do so. 

Rutledge, for the Crown, asked that the juror might be directed 
to stand aside. 



1896. 

lOth August. 
Griffith C.J. 



826 QUEENSLAND JUSTICE OF THE PEACE. 

Eeoixa 0. Blair, for prisoner : The challenge is not in time. The juror 

LoNGLAND. ^^^ actually taken the book in his hand, and the rule is that the 
challenge must be made before the juror actually takes the book. 
Griffith C.J. : That is the rule as regards peremptory chal- 
lenges. Is it the rule as to challenges for cause ? There is no 
doubt that the challenge should come before the book is placed 
in the jviror's hands, but at the last sittings of the Criminal Court 
at which I presided I decided that when a man puts out his hand 
to take the book and touches it, but it has not been handed to 
him, it is not too late. But in this case the book was placed in 
his hands and the oath was recited to him. Everything was done 
except taking it. 

Griffith C.J. Griffith C.J. (after consulting Real J.) : I have had the 

advantage of consulting my brother Real upon this point. I am 
disposed to think, and so, as I understand him, is he, that when 
a juror has done no act on his part indicating an assent to the 
taking of an oath, it is not too late to challenge him. Now, as 
I understand from the juror, there was no act of assent on his 
part, but he took what he believed the earUest opportunity of 
refusing to take the oath. H,e said, in effect, that if he went 
through the form of taking the oath, he would not feel bound by 
it. I think that is in effect a refusal to take the oath in any 
intelligible sense, and if a juror will not take the oath, of course 
he cannot be on the jury. But, assuming the juror to be on the 
jury, and that it is too late to challenge him, there is another way 
of regarding the matter, which is quite free from doubt. The 
judge may at any time discharge a jury if in his opinion there is 
a necessity to do so. Now, this juryman has told us in effect that 
if he is on the jury, whatever the evidence may be, the trial will 
be merely an idle form. I think that such an occasion as this 
is an occasion on which a necessity arises for discharging the 
jury. I therefore discharge the jury as far as it is already formed, 
and ask the gentleman already in the box to leave it. He will 
then be called again, and sworn in in the usual manner. The 
authority for the discharge of a jury whenever the necessity 
arises is Winsor v. The Queen (L.R. 1 Q.B. 390). 

The juror already sworn was discharged ; the impanelling of 
a jury begun de novo, and he was again sworn in his turn. 

Solicitors for prisoner : Bernays & Osborne. 



CKIMINAL EEPOKTS, 1860-1907. 327 



[Brisbane Criminal Sittings.] 

REGINA V. CHAMBERS AND ANOTHER. 

[7 Q.L.J. 64 ; N.C. 27.— Note.— See now ss. 571, 572 of Criminal Code.] 

Criminal law — Error in information — Amendment — Practice. 



1896 

Sth May. 

Cooper J. 



An information charging a prisoner with committing an offence at a date which 
l.acl not then arrived was allowed to be amended, although the eror was not 
discovered until after the Crown Prosecutor had opened the case for the Crown. 

After the amendment had been made, the trial was proceeded with, and the 
prisoner was not recharged nor was a fresh jury sworn on the amended informatior.. 

Trial of Thomas Chambers and Jane Brooks, on a charge of 
procuring abortion. 

The information, which was presented on Sth May, 1896, 
charged the defendants with committing the offence in November, 
1896. The error was not discovered until the Crown Prosecutor 
was opening the case for the Crown, when the Judge (Cooper J.) 
directed his attention to the defect. 

Bviledge applied for leave to amend the information by substi- 
tuting 1895 for 1896, as the year in which the offence charged 
was committed. 

Ulair for prisoner Chambers, objected, on the ground that as 
no offence had been disclosed by the information, the case differed 
from the cases in which such amendments were allowed by the 
authorities, as in all those cases an offence had been disclosed. 

Cooper J. : I do not like to stop the trial at this stage, and I Cooper J. 
will allow the amendment to be made. I wUl, however, if Mr. 
Blair desires me to do so, reserve the point and state a case for 
the consideration of the Full Court. 

The trial was then proceeded with, the prisoners not being 
rearraigned, nor the jury resworn. 

The prisoners were found not guilty. 

Sohcitor for prisoner Chambers : H. B. Lilley. 
Solicitors for prisoner Brooks : Unmack & Fox. 



328 



QUEENSLAND JUSTICE OP THE PEACE. 



1896. 
13th August. 

Griffith C.J. 



Griffith C.J. 



[Brisbane CEnnNAL Sittings.] 
REGINA V. FINLAY. 

[7 Q.L.J. 65 ; N.C. 32.— Note.— See now ss. 486, 487, and 488 (IV.) ol Criminal 
Code, and compare s. 126 ol Commonwealth Post and Telegraph Act (No. 12 
of 1901).] 
Criminal law — Admission of evidence — Res inter alios. 

On the prosecution of a prisoner on a charge of forging the name of the payee 
of a post office money order, the letter of advice or authority written by the 
sending post office to the office at which the order was payable held to be admissible 
against the prisoner. 

Trial of William John Finlay for forgery. 

The prisoner, who was undefended, was charged with having 
forged the name of William Finlay to a post office money order, 
which was intended to be sent to the said Wilham Finlay. 

The practice of sending and paying money orders sufficiently 
appears in the judgment of the learned Chief Justice. 

During the case for the Crown 

Rutledge for the Crown, tendered the letter of advice or authority 
from the sending post office to the office at which the money order 
was payable. 

Rutledge : The letter is admissible. It is a necessary part' of 
the money order, and without it the money order is unintellig- 
ible. Moreover, the person who presented the money order 
had necessarily to give the name of the person mentioned in the 
letter of advice as sending the order, which was equivalent to 
his being shown the letter, and being asked to read it. 

Griffith C.J. : I think the document is admissible. It might 
be objected that it is apparently res inter aZios^that is to say, 
that the document is one with which the prisoner had nothiag 
to do. Assuming that a document is one of which the accused 
person knows nothing, it may still be admissible in evidence. 
There are some facts which can only be proved by a written 
document. As I understand the evidence, the course of practice 
between the Post Office here and other countries is that the Post- 
master-General receives, as agent of the Post Office or Postmaster- 
General of the sending country, authority to pay the sum men- 
tioned in the order to the particular person named in the letter of 
advice. The authority of the Postmaster-General in this case 
was therefore to pay the sum of 10s. to the person named in the 
letter of advice and to nobody else. I think it is material to prove 



CRIMINAL REPORTS, 1860-1907. 



329 



that that was so, and that fact can only be proved by the 
document. I think that it is admissible on that ground. I 
think it is admissible also, though I am not quite so sure about 
it, on the ground that it was referred to in the document put 
forward by the prisoner. By presenting the post office order 
and asking for money, the person who presented it virtually said, 
" I am the person mentioned in the document in your hand." 
That being so, I think the document to which the post office order 
referred and to which the person presenting it must be taken to 
have referred, is admissible in evidence. 



Begina v. Finlax. 
Griffith C.J. 



[ROCKHAMPTON ClVlL SITTINGS.] 

THE QUEEN v. JAMES. 

17 q.L.J. 148 ; N.C. 90.— Note.— See R. v. Vos (7 Q.L.J. N.C. 74) post ; and B. v. 
Malone (1903 S.R.Q. 140) post.] 

Bail — Criminal law — Application for admission of prisoner to 
bail — Discretion of Judge — Capital offence. 

The principles governing the exercise of the discretion of a Judge to admit 
to bail a prisoner charged with a capital offence considered. 

Application to make absolute an order nisi to show cause 
why Richard Henry James, a prisoner charged ■ndth the offence 
of rape, should not be admitted to bail. 

The prisoner had been committed for trial on the charge of 
having committed rape, and an order nisi had been granted 
by Power J., calling on all parties interested to show cause why 
he should not be admitted to bail. 

All -the facts and argument appear in the judgment of the 
learned Judge. 

Walsh, for prisoner, to move the rule absolute. 

No appearance for the Crown. 

Power J. : In this case the prisoner is charged with having, 
on the 13th of December last, committed rape on CaroUne Cann, 
at Ilfracombe, and on the 20th of this month I granted a rule 
nisi, on the appUcation of Mr. Walsh, calling on all parties con- 
cerned to show cause why the prisoner should not be admitted 
to bail. Mr. Walsh now moves the rule absolute. The Crown 
is not represented. I have to consider whether, in the exercise 
of my discretion, the prisoner should be admitted to bail. 



1897. 
87th January, 

Pmoer J, 



Power J. 



830 QUEENSLAND JUSTICE OF THE PEACE. 

Begina v. James. The offence with which the prisoner is charged is in this colony 
Power J. ^ capital offence. I, of course, ofier no opinion on the evidence. 
It is sufficient for me to know, as I have discovered to-day from 
an affidavit filed by Mr. Walsh, that a true bill has been found 
by the Crown Prosecutor. A Judge of the Supreme Court has 
power to admit any person to bail in a capital felony. The 
question is : When and under what circumstances he should 
exercise that discretion ? 

There are a number of previous decisions on the subject, and 
I think I ought to be guided by them. The first case is that of 
R. V. Scaije (10 L.J.Q.B. 302) so far back as 1841. In that case 
first of all, an indictment had been preferred against the parties, 
who were charged with felony. They were charged with having 
certain coining miUs in their possession at Manchester. A bill 
had been found by the Grand Jury ; but the trial did not take 
place at the assizes, but the prisoners were apprehended on a 
bench warrant. A rule nisi for admitting them to bail was 
obtained. The case was adjourned, and, strange to say, for a 
similar reason to this. Lord Coleridge said : " The question 
seems to me to assume a different character now that the case 
has been before the Grand Jury. You are now quite certain 
that the parties will be required to take their trial." I adjourned 
this case to ascertain whether a true bill was found or not, and I 
find a true bill wiU be found, and know that a trial will take place. 
So perhaps it was discreet I did adjourn to get further information. 
Lord Coleridge said : " The offence is serious, the punishment 
considerable, and the evidence strongly presumptive of guilt." — 
I do not say for one moment that the evidence in this case is 
strongly presumptive of guilt. — " It is also to be observed that 
this is an application when a true bill has been found by the 
Grand Jury against the prisoners, and that circumstance has been 
held material by Lord Abinger in R. v. Chapman (8 C. & P. 558), 
and by my brother Patteson in R. v. Gutteridge (9 C. & P. 228) 
on this ground — that there is no longer any doubt that the trial 
will take place, in which case, it becomes so much the less Hkely 
that the party should wish to expose himself to the risk of a 
trial." That seems to me to be the earliest case on the subject. 
The second case seems to be R. v. Richard Andrews (13 L.J. (M.C.) 
113). I think it is sufficient if I read the head note : " Where 
a true bill for murder has been found against a prisoner by the 
Grand Jury, and the trial. was postponed in consequence of the 
absence of material witnesses for the prosecution, the Court 



CEIMINAL REPOETS, 1860-1907. ' 331 

refused to entertain the application to admit him to bail. The Bebina u-jJames. 
Court will in no case admit to bail where a true bill for a capital Power J. 
offence has been found against the prisoner by the Grand Jury." 
I need not refer any further to that case. The next case is 
Barronet v. Allain (1 E. & B. 1). The marginal note to that case 
is this : " The Court has a discretion to admit accused persons 
to bail in all cases ; but in exercising that discretion the nature 
of the charge, the evidence by which it is supported, and the 
sentence which by law may be passed in the event of a conviction, 
are, in general, the most important ingredients for the guidance 
of the Court, and when these are weighty the Court will not 
interfere. Four foreigners were committed on the coroner's 
inquest and by the warrant of justices to take their trial for wilful 
murder committed in a duel. Two of them, when before the 
magistrates, avowed that they acted as seconds of the deceased. 
Application was made on their behalf to the Court to admit them 
to bail, on affidavits, by these prisoners, that they had acted 
only as seconds ; that the duel was fair ; that they were 
foreigners, and ignorant of the law ; and beUeving they were 
bound, as men of honour, to act as they did ; and that acting as 
seconds was not punishable in their own country ; and they 
pledged themselves, in the event of being admitted to bail, to 
abide their trial. Held — that assuming these facts to be accurate, 
they afforded no ground for the Court interfering to bail prisoners- 
proved by their own confession to be guilty of a capital offence." 
Of course there has been no admission of guilt here. In that 
case Lord Campbell made these observations : " I think we can 
look only to the nature of the charge, which is, in this case, a 
capital offence, and to- the evidence, which, in this case, is a con- 
fession. On this evidence, if not altered, the verdict must be 
guilty." In this case I may state, without expressing any 
opinion, that if the evidence of the woman (Mi's. Cann) is believed, 
of course, there can be only one verdict. I do not say that it 
ought to be beUeved or that it will be believed ; but, as Lord 
Campbell says, if " the evidence is not altered, the verdict must 
be guilty. ... I hope that the circumstances may prove 
such that execution of the sentence may be avoided ; but sentence 
of death must be awarded on such a verdict." So it is here. If 
this man is found guilty, there is only one sentence, according 
to the law of this colony, which could be pronounced, and that 
is sentence of death ; and I may state in my own experience I 
have known two cases where that sentence was pronounced and 



332 



QUEENSLAND JUSTICE OF THE PEACE. 



Eegina v. James, where it was carried out. Those were the cases of Jacky Camp- 
PowCT J. ^^11 ^* Ipswich, and, I think, a man named Murphy [Byrne (?)] 
at Brisbane. Further, Lord Campbell says : " No instance 
has been brought before us in which any such step as we are now 
asked to take has been taken by this Court or by any Judge." 
In the same case Mr. Justice Coleridge, as he was then, said : 
" Then we are told that the sentence of death will probably not 
be executed. I think, however, that we must look to. the legal 
consequences of a conviction, and not speculate on the probable 
mercy of the Crown." That is my opinion, too. Apart from that, 
as I have already pointed out, there are two instances, at aU 
events, in which sentence of death was executed in Queensland. 
Mr. Justice Erie, I think, puts the matter very clearly. He 
says : I take the principle on which the Court acts to be that, 
where the charge is of a crime of the highest magnitude, the 
evidence clear " — I say, without expressing any opinion whatever 
as to any further evidence that may be brought before the jury 
which will try the case, that it is clear as it stands on the 
depositions- — " and the punishment is the highest known to the 
law, the Court should not interfere." This is the last case I will 
refer to — In re Robinson, which is reported in Volume XXIII. 
of the Law Journal (new series) . The marginal note is this : 
" On an application to bail a prisoner charged with a criminal 
offence, the test to govern the discretion of the Court is the 
probability of the prisoner appearing to take his trial ; but 
in applying that test, the Court will not look to the character 
or behaviour of the prisoner at any particular time " — that is 
why I did not take any notice of the affidavit as to character 
put in by Mr. Walsh. A man may be thoroughly respectable 
up^till a certain time — " but will be guided by the nature of 
ihe crime charged, the severity of the punishment that may be 
imposed, and the probability of a conviction. Therefore, when 
the evidence was strong against the bankrupt committed to 
prison on a charge of concealing a part of his estate, which is an 
offence subjecting the party convicted to transportation for life, 
the Court refused to allow him to be bailed." As I have pointed 
out, this is a far more serious case. I can only look at the law 
as it stands in Queensland. This is, as I have already said, 
a capital offence. Mr. Justice Coleridge, in delivering judgment 
in this case — which appears to be the latest case on the point 
— said : " The test, in my opinion, of whether a party ought to 
be bailed, is whether it is probable the party will appear to take 



CRIMINAL REPORTS, 1860-1907. 333 

Ms trial. I know that I have been thought to go further than Regina k^Jambs. 

other members of the Queen's Bench ; but I do not think there Power j, 

is any real difference between them and myself, for though I 

lay down that test, I think it ought to be Umited by the three 

following considerations. If you want to know whether a party 

is Ukely to take his trial, you cannot go into the question of his 

character or of his behaviour at any particular time, but must be 

governed by the answers to three general questions. The first 

is — What is the nature of the crime ? Is it grave or trifling ? Here 

the prisoner's crime, which is that of concealing his effects, is of 

the heaviest character. The second question is — What is the 

probability of a conviction ? What is the nature of the evidence 

to be offered by the prosecution ? Here it is very strong. Though 

the circumstances admit of the observations made by counsel 

against their conclusiveness, yet the prisoner does not suggest 

them himself, nor does he deny his guilt " — here the guilt is 

denied. — " The third question is — Is the man Uable to a severe 

punishment ? " — I need not refer to that again. I have already 

mentioned what the punishment is — " Now our laws know of 

hardly any secondary punishment so heavy as that fixed for 

this offence. Tried by these tests, I think I ought not to allow 

the prisoner to go free," 

I am of the same opinion. I do not think I should allow a 
prisoner to go free on a charge of this kind, more particularly 
as he has to wait only a very short time for his trial, and he is in 
no way embarrassed, because, under s. 114 of The Justices Act 
of 1886, the Minister can admit him to bail. Section 114 says : 
" No justice shall admit any prisoner to bail for treason or a 
capital offence, nor shall any person charged with any such 
offence be admitted to bail, except by order of the Minister " — - 
the Minister is defined to be the Colonial Secretary, and is now, 
I presume, the Home Secretary — " or of the Supreme Court, or a 
Judge thereof." So, as far as my reading of that section goes, 
the Minister, who, probably, has better opportunities of getting 
at the facts of the case than I have, may, notwithstanding my 
decision to-day, admit to bail. I point this out so that the 
prisoner may be in no way prejudiced by my judgment to-day. 
The case of R. v. Clancy (unreported) has been referred to. I 
regret there has been no appearance of the Crown, because my 
recollection of that case — in which I happened to be Crown 
Prosecutor — is that there was no true bill found. 

Walsh : That is so. No true bill was found. 



384 

Eegina r. James. 
Power J. 



QUEENSLAND JUSTICE OF THE PEACE. 

Power J. : So that case is no precedent, even were I inclined 
to follow precedents in this case. The only other case of a capital 
nature I know of where bail was permitted, was the case of R. v. 
Wheeler (unreported) some twenty years ago, when the prisoner 
was charged with murder. He was admitted to bail by Mr. 
Justice Lutwyche, and did not appear to take his trial, forfeited 
his bail, and has never been heard of, so far as I know, from that 
day to this. So, under all the circumstances, and considering 
particularly that the prisoner has only to wait until the 16th 
March, I do not feel justified in admitting him to bail. I there- 
fore discharge the rule. 

Solicitors for applicant : Fitzgerald & Walsh. 



1896. 
13th August. 

Griffith C.J. 



REGINA V. GOLDSWORTHY. 

[7 Q.L.J. N.C. 42.— Note.— See now s. 222 of Criminal Code.] 

Criminal law — Evidence — Admission of evidence of svbsequent 
conduct of prisoner. 

On the trial of a prisoner charged with committing incest 
with his daughter, evidence was admitted of the subsequent 
perpetration of the same offence on different days previous to 
the complaint of the daughter, it appearing that the prisoner 
had threatened the daughtei- on the first occasion. 

R. v. Reardon (4 F. & F. 76) followed. 



1894. 
lith December. 

Griffith G.J. 



THE QUEEN v. VOS. 

[7 Q.L.J. N.C. 74.— Note.— See R. v. James (7 Q.L.J. 148), ante p. 329.] 

Criminal law — Bail. 

The principles for consideration on an application for bail 
on a criminal charge are (1) the probability of the prisoner appear- 
ing to take his trial ; (2) the nature of the crime charged ; (3) the 
severity of the punishment ; and (4) the probability of a con- 
viction. 

In re Robinson (23 L.J., Q.B. 286) followed. 



CRIMINAL REPORTS, 1860-1907. 



335 



R. V. SPENCE. 
[7 Q.L.J. N.C. 81.— Note.— See ss. 557-559, and 650 ol Criminal Code.] 

Justices Act (50 Vic, No. 17), s. 138 — Place of sentence — Warrant. 

It is the privilege of a prisoner to be sentenced at the place 
where he is committed, if a Court is held there. The Court 
should not be altered merely to save expense. 

The warrant should mention the gaol to which the prisoner 
is to be sent. 



1891. 
31st August. 

Harding J. 



[Pull Cottbt.] 

R. V. MORAN. 

[7 Q.L.J. N.C. 101.— Note.— See s. 398 (VI.) ot Criminal Code, and definition of 
clerk or servant In s. 1.] 

Criminal law — Embezzlement — Servant. 

Where upon an information for embezzlement it appeared 
that the prisoner had in pursuance of written instructions from a 
firm effected a sale and received the money arising therefrom, 
and it further appeared that his instructions contained an intima- 
tion that in consideration of his faithfully effecting such sale 
the firm would remunerate him at the rate of £3 per week : 

Held, on a Crown Case Reserved, that the prisoner could be 
convicted of embezzhng the moneys arising from such sale. 



[Full Coubt.] 

R. V. RICHERT. 

[7 Q.L.J. N.C. 107.— Note.— 29 Vie., No. 5, s. 42, is repealed, see now s. 468 of 
Criminal Code. 29 Vic, No. 6, ss. 10 and 11 are repealed, see now ss. 398 
and 402 of Code. As to larceny see now s. 391, and as to receiving, see s. 
433 of Code. See also s. 568 (4) of Code.] 

Information — Oattle stealing — 29 Vic, No. 5, s. 42 — 29 
No. 6, ss. 10, 11 — Separate counts. 



Vic, 



In cases where a prisoner is charged with stealing cattle, 
where possible there should be separate counts for stealing under 
29 Vic, No. 6, s. 10 ; for killing with intent to steal under s. 11 ; 
for killing under 29 Vic, No. 5, s. 42 ; also for larceny of meat, 
skin, &c., and for receiving live animals ; and also for receiving 
live animals, dead animals, meat, skin, &c. 



1876. 
37th April. 



1877. 
88th November. 



336 



QUEENSLAND JUSTICE OF THE PEACE. 



1885. 
6th November. 

Cooper J. 



R. V. WILLIE. 

[7 Q.L.J. N.C. 108.] 

Trial — Aboriginal — Inability of interpreter to charge accused. 

Whbeb, on the trial of four aboriginals on a charge of murder, 
no interpreter could be found competent to communicate the 
charge to the accused, the prisoners were ordered to be discharged. 



1883 
3rd December. 

Hardivii A.C.J. 



E. V. GRIMES. 

17 Q.L.J. N.C. 109.— Note.— See B. v. KennlfE (1902 Q.W.N. 76) post.] 

Trial — Adjournment. 

The rules for an adjournment of a trial are : (1) That it must 
be shown that a witness is really necessary, and that it appears 
to the Court that he is so ; (2) that the party who appears and 
asks for an adjournment has been guilty of no neglect ; (3) that 
the witness can be had at the time to which the trial is postponed. 



1887. 
6th April. 

ilein J. 



R. V. WILSON. 

[7 Q.L.J. N.C. 110.] 

Trial — Prisoner — Prisoner 'permitted to sit on the floor of the Court — 
Prisoner's dock. 

A PERSON charged with a criminal offence cannot claim as of 
right to be allowed a seat on the floor of the Court, but applications 
may be made to the Court for that purpose under special cir- 
cumstances. Where a prisoner was charged with misappropria- 
tion as a director, and there were special reasons for his being 
allowed to sit with his counsel, he was allowed to sit at the bar 
table. 



CRIMINAL EEPOETS, 1860-1907. 337 

R. V. SHAW. 

[7 Q.L.J. N.C. 111.— Note.— See R. v. Freeman, (6 Q.L.J. 281), ante p. 300 ; R. v. 
Johnstone (1907 S.R.Q. 155), post.] 

Juror — Challenge by Crown — Challenges for cause. 

When on a criminal trial the jury panel has been twice 
exhausted and a jury has not been sworn, the Crown can only 
challenge on the third calling of the panel for cause. 



1885. 
3rd June. 

Harding J. 



R. V. ALBERG. 

[7 Q.L.J. N.C. 112.— Note.— 50 Vic, No. 14, is repealed, see now s. 656 (5) of 

Criminal Code.] 

Sentence — Offenders Probation Act, 1886 (50 Vic, No. 14)- — 
Unlawfully wounding. 

Where a prisoner had been convicted of unlawfully wounding, 
his sentence was suspended under the Act 50 Vic, No. 14, and 
he was ordered to pay £10 compensation. 



1893. 
1st June. 

Griffith C.J. 



[Full Court.] 
R. V. SCHLOSS AND MAGUIRE. 

18 Q.L.J. 21 ; N.C. 22.— Note.— 55 Vic., No. 24, ss. 6 and 21, are repealed, see now 
ss. 215, 216, and 350 of Criminal Code.] 

Criminal Law Amendment Act of 1891 (55 Vic, No. 24), ss. 6, 21 — ^^97. 

Indecent assault on a girl under the age of 14 years — Defence 

of reasonable belief that girl was over the age of 14 years. 

Griffith O.J. 
The defence of belief on reasonable groimds that a girl is not under the age of Cooper J. 
14, which is allowed by s. 6 of the Act, 55 Vic, No. 24, to a charge of unlawfully 
carnally knowing a girl under 14, applies also to a charge of indecent assault. 

Special Case stated by Griffith C.J. 

S. and M. were jointly indicted, S. on a charge of committing 
a rape upon H., and M. with aiding and abetting him to commit 
the offence. It appeared on the evidence that H. was a girl 
under the age of 14 years. The jury found : (1) That S. was 
guilty of unlaM'fully carnally knowing a girl under the age of 



12th March and 
7th June. 



Real J. 



838 QUEENSLAND JUSTICE OP THE PEACE. 

K. V. ScHLoss AND j^ ^j^jj ^qj. consciit ; (2) that he was guilty of indecently assault- 

'■ ing a girl under the age of 14 with her consent ; (3) that M. 

aided and assisted S. in committing the indecent assault ; and 
(4) that both prisoners believed on reasonable grounds that H. 
was not under the age of 14. The evidence establishing the 
carnal knowledge was the same as the evidence establishing the 
indecent assault. Griffith C.J. directed a verdict of indecent 
assault to be entered against S., and a verdict of guilty of 
aiding and assisting in the assault to be entered against M., 
and sentenced both prisoners to six months' imprisonment 
with hard labour, but reserved for the consideration of the 
Pull Court the question whether, on the finding of the jury that 
the prisoners believed on reasonable grounds that H. was not 
under the age of 14, the convictions were right. 

Stumm for prisoners : The object of s. 21 of The Criminal 
Law Amendment Act of 1891 was to extend the legislative pro- 
visions then in force for the protection of young girls against 
debauchery, and to protect them against all kinds of indecent 
treatment. The only efEect of s. 21 is that if the child is under 
14 the accused must show something more than mere consent. 
But it is sufficient to show that it would not have been an offence 
to have gone further. Before The Criminal Law Amendment 
Act of 1891 there could be no indecent assault with the girl's 
consent. It is a general rule that a guilty mind is an essential 
ingredient in a crime, and that an alleged offender is deemed 
to have acted under that state of facts which he in good faith and 
on reasonable grounds believed to exist when he did the act 
alleged to be an offence, unless in the statute creating the offence 
a contrary intention appears. [Stephen's Digest of Criminal 
Law (5th Ed. Art. 35, p. 27), B. v. Prince (L.R. 2 C.C. 154, at p. 
171), R. V. Gibson (11 V.L.R. 94).] No contrary intention 
appears in the Queensland Statute. Section 6 of the Act adds 
force to the contention that the general rule must apply in this 
case. . Section 21 must be read with^ s. 6, the statute deahng 
with one subject. The Legislature considers indecent assault 
of equal gravity vidth the offence under s. 6, the maximum punish- 
ment being the same. If charged with carnally knowing, the 
prisoners would have been acquitted, having shown a suffici^t, 
defence ; and the jury on the same evidence having fouiid, 
in effect, that the indecent assault was the carnally knowing, the 
prisoners should not be placed in a worse position than if charged 
with what they actually did. The indecent assault consisted 



CEIMINAL REPORTS, 1860-1907. 



339 



Griffith C.J. 



of an act to which the prisoners established a defence, which the ^' ^'^°g^^^ ^"^ 

Legislature has said is a sufficient defence. The conviction 

should therefore be quashed. 

Rutledge, for the Crown : The prisoners being convicted of 
the offence under s. 21 cannot claim to have the benefit of the 
defence given by s. 6 to the cliarge of a different offence. If 
charge had been of indecent assault, verdict would have been good 
and belief would have been irrelevant, and the graver charge 
includes the lesser. [He cited R. v. Paul (25 Q.B.D. 202).J 

C.A.V. 

7th June, 1897. 

Griffith C.J. : The difficulty in this case arises from the 
terms of s. 21 of The Criminal Law Amendment Act of 1891, 
which provides that " It shall be no defence to a charge of indecent 
assault on a young person under the age of 14 years to prove 
that he or she consented to the act of indecency." The language 
of that section is, of course, faulty. The term assault of itself 
involves the notion of want of consent. An assault with con- 
sent is not an assault at aU. The section, therefore, must be 
taken to mean that it is no defence to a charge of an indecent act 
committed with respect to a young person under the age of 14 
years, which would be an offence if it were not consented to, 
to show that the young person consented to it. The prisoners 
were convicted under that section. They had been charged 
with a graver offence, and it was proved in evidence that they 
had done acts which would have constituted an offence under 
s. 6 but for the provisions of that section, which make it a defence 
to show that the accused person " befieved and had reasonable 
■cause to believe that the girl was of or above the age of 14 years." 
'The jury found that the prisoners believed on reasonable grounds 
that the girl was of or above the age of 14 years. Section 6, 
iowever, does not apply in terms to a case in which a man is 
■charged with an indecent assault. If it does not apply at all, 
there is an obvious anomaly. For although, if he had done 
the more grievous act, a man could not be convicted if he believed 
on reasonable grounds that the girl was of or above the age of 
14, yet if he is charged with an indecent assault he might be 
convicted, notwithstanding that he believed on reasonable 
grounds that she was of or above that age. The general rule 
established by the case of R. v. Prince (L.R. 2 C.C. 154) is that in 
cases of this kind knowledge of the age of the girl is not material. 
Unless, therefore, the qualification stated in s. 6 applies, there is, 
as I have said, an obvious anomaly. 



840 



QUEEISISLAND JUSTICE OF THE PEACE. 



b. v. schloss and 
Magtjibe. 

Griffith C.J. 



It has often been said that where there is an apparent ambiguity 
in a statute the best rule of construction is to consider what 
was the common law, what was the state of the law when the 
statute was passed, what were the defects in the law as it then 
stood, and what course the Legislature appears to have adopted 
to remedy these defects. Following that rule, a tolerably clear 
solution of the difficulty may be arrived at. At common law 
offences against women were regarded simply as assaults, and the 
essence of the ofienoe was want of consent on the part of the 
woman or girl. The woman was regarded as the absolute mistress 
of her own person, and consent was, irrespective of age, an answer 
to any charge of an attack upon her. An indecent assault was 
an assault aggravated in a particular way. Rape was regarded 
as an assault aggravated in a more serious way, but they were 
both regarded as assaults, and the criminal liability depended on 
the same conditions, whatever was the extent of the aggravation. 
Then the Legislature appears to have thought that this protec- 
tion was not sufficient, and many years ago they made provi- 
sion for the protection of young girls against debauchery, by 
providing that carnal knowledge of a girl under a certain age 
should be an offence, irrespective of consent. The original class 
of persons protected having been only those persons who pro- 
tected themselves by refusing consent, another class was thus 
created, of persons under a certain age, who were considered 
incapable of protecting themselves, and mth respect to whom, 
consent was made entirely immaterial. But that protection was 
limited in its extent. As the law was first passed it only 
applied to the case where the offender had actual carnal 
knowledge or attempted to have carnal knowledge. It did 
not, like the original law, put cases of mere indecent attack 
on the person on the same footing as the graver offence. Obvi- 
ously, therefore, there was an inconsistency in the law. Then 
the Legislature intervened again by the Act now under consider- 
ation, and their intention apparently was not only to extend the 
protection previously afforded, but also to remove the inconsist- 
ency and make the protection equally extensive whether the act 
amounted to carnal knowledge or fell short of it, and consisted 
only of an indecent attack on the person. The apparent intention 
was to make the protection equally extensive in all cases in which 
consent was made immaterial. Regarding the matter from that 
point of view, we should expect to find some provision supple- 
mentary to the provisions protecting young children from being 



OEIMINAL REPORTS, 1860-1907. 



341 



actually debauched. And, so regarded, s. 21 appears to be merely 
a supplementary provision, intended to make the protection 
against indecent assault co-extensive in point of age with the 
protection against carnal knowledge. It was not intended, I 
think, to create a new offence altogether, which would be done if 
it were construed as providing that indecent acts committed upon 
a young person should be an offence even if committed with 
consent, when they would not be an offence if accompanied by 
more aggravated circumstances. Another way of regarding the 
matter, perhaps, would be to read s. 21 in this way : "It shall 
be no defence to a charge of indecent assault upon a young person 
under 14 merely to prove that he or she consented." That is to 
say, that mere consent is not to be a defence. At common law 
mere consent was a complete answer, no matter what the age of 
the child or woman. The Legislature now says that certain 
persons shall be incapable of consenting to injurious acts of this 
kind committed with respect to them. If, therefore, the child is 
under 14, you must show something more than mere consent, 
you must show capacity to consent to an act involving carnal 
knowledge. Some qualification is obviously necessary, for 
otherwise s. 21 would apply to a girl married under 14. The true 
qualification, I think, is to be found from a consideration of the 
iistory of the previous law ; that is to say, that this section is 
intended to apply to all cases of indecent dealings with young 
X)ersons, when carnal knowledge of them would be an offence. 
If that is the true view, the conviction was wrong, and ought to be 
quashed. 

Cooper J. : I concur, and for the same reasons. 

Real .J. : I concur, and for the same reasons. 

Conviction quashed. 

Solicitor for prisoners : J. G. McGregor, agent for W. H. 
Summerville, Ipswich. 



k. v. sohloss and 
Maouire. 

Gnffiith C.J. 



Cooper J. 
Real J. 



842 QUEENSLAND JUSTICE OP THE PEACE. 

[TowNSViLLE Civil Sittings.] 
REGINA V. MURPHY AND HOBART. 

L8 Q.L.J. 63 ; N.C. 46.— Note.— Sec. 37 ol 53 Vic, No. 12, is repealed, see now 
s. 388 of Criminal Code, not identical.] 

1897. The Defamation Law of Queensland (53 Vic, No. 12), ss. 37, 45— 

7th, mil Avgitst. Prosecution by Attorney-General — Sanction of judge. 

Chnbb J. Section 37 of The Defamation Law of Queensland does not apply to criminal 

proceedings instituted virtute offirAi by the Attorney-General, as the Crown is not 
specially named in the section. 

Yates V. The Queen, 15 Cox C.C. 686, 14 Q.B.D. 648, followed. 

Application under s. 37 of The Defamation Law of Queensland, 
for an order calling on W. S. Murphy and C. B. Hobart, of Croydon, 
printers, publishers, and proprietors of the Mining, News, Croydon, 
to show cause why a criminal prosecution should not be instituted 
against them for defamation. 

A. M. Beaumont for the Crown. 

C.A.V. 

Chubb J. Chubb J. : This is an application made by Mr. Beaumont, 

Northern Crown Solicitor, for the Attorney-General, on behalf of 
the Crown, for an order calling upon W, S. Murphy and C. B. 
Hobart, of Croydon, printers, publishers, and proprietors of the 
Mining News, Croydon, to show cause why a criminal prosecution 
should not be ordered to be instituted against them, under s. 37 
of The Defamation Law of Queensland, for defamatory matter 
pubUshed by them in the said paper on 20th May last, of and 
concerning W. F. Morgan, G. Hepburn, and W. de Renzie Wilson, 
Justices of the Peace, touching the administration of justice by 
the said justices. On the application being made I intimated 
my opinion that the statute did not apply to the criminal proceed- 
ings instituted virtute officii by Her Majesty's Attorney-General, 
but reserved my decision in order that I might look into the 
authorities. Having done so, my view has been fully confirmed. 
The section in question runs thus — " No criminal prosecution 
shall be instituted against the proprietor or publisher or editor or 
any person responsible for the publication of any periodical for 
any defamatory matter published therein without the order of 
a judge of the Supreme Court, made after notice to the person 
accused, and after that person has had an opportunity of being 
heard in opposition to the application for the order." This is 
almost a literal transcript of s. 8 of the Imperial statute 51 and 



CRIMINAL REPORTS, 1860-1907. 



343 



52 Vic, c. 64 (The Law of Libd Amendment Act, 1888). The 
origin of this section is to be found in s. 3 of the Imperial statute 
44 and 45 Vic, c 60 (Newspaper Libel and Registration Act, 1881) 
which enacted that no criminal prosecution should be commenced 
against any publisher, proprietor, editor or any person responsible 
for the publication of a newspaper, for any Ubel published therein 
without the written fiat or allowance of the Director of Public 
Prosecutions in England, or Her Majesty's Attorney-General in 
Ireland, being first had and obtained. Upon this last section it 
was decided in Yates v. The Queen (15 Cox C.C. 686, 14 Q.B.D. 
648), that the section did not apply to criminal informations filed 
by leave of the Court. It was conceded by the counsel who 
argued that case, and it is also abundantly clear from the obser- 
vations of several of the learned judges, that ex officio informations 
filed by the Attorney-General by virtue of his office, on his own 
responsibility in exercising the prerogative of the Crown, were in 
their opinion for various reasons, given by the learned Judges, 
which T need not repeat, excluded from the operation of the 
section. The present section differs from the former in substi- 
tuting the order of a judge for the fiat of the officer there men- 
tioned, but I think (apart from the special reasoning in Yates v. 
The Queen as affecting the Attorney- General from the mere 
language of the section), on the general grounds and reasoning 
there appearing, the construction here must be the same. The 
words " criminal prosecution " were in Yates v. The Queen held 
to mean a prosecution by indictment or before a magistrate as 
distinguished from a proceeding by criminal information. The 
well-known rule of construction appUed, as regards the Crown, 
to statutes, is shortly and clearly stated by Matthew J. at p. 
690. " The general rule is well established that the rights of the 
Crown shall not be bound or restrained by any statute unless it 
be specially named." The Crown is not touched except by 
express or necessary implication in any case where it would be 
ousted of an existing prerogative or interest. [See Maxwell on 
Statutes, 2nd Ed. 161, and cases cited in note (b).] The Crown 
is not named in this section nor can it be drawn in by any neces- 
sary implication. Section 45 saved aU privileges by law existing. 
It is well known that this Act was drafted and carried through 
ParUament by a no less experienced lawyer than the present 
learned Chief Justice, and it is highly improbable that so import- 
ant a matter as this escaped the observation of that eminent 
authority. If Parliament intended to take away the prerogative 



Begina v. 
Murphy and 

HOBABT. 

Chubb J 



844 



QUEENSLANDr JUSTICE OF THE PEACE. 



Beqin'a v. 
mokphy and 

HOBAKT. 

Chubb J. 



which, after all, is exercised for the common weal, it should, and 
I think would, have said so in express and unmistakable terms. 
The Attorney-General needs no authority from this Court to file 
an ex officio information for defamation. The application is 
therefore refused. 

Solicitor : A. M. Beaumont, Crown Solicitor. 



1897. 

Slid and 3rd 
November. 

Griffith C.J. 
Cooper J. 
Real J. 



[Full Court]. 

R. V. MOODY. 

[8 Q.L.J. 102 ; N.C. 71.— Kote.— See ss. 4, 6, 29, 668, and 669 ot Criminal Code. 
Criminal Practice Act is repealed. Offences against the Person Act ot 1867 
s. 64, is repealed, see now s. 6 ot Criminal Code.] 

Crown case reserved — Prisoner committed for sentence — Power of 
judge to reserve point arising on depositions — Sexual offence by 
boy under 14 — Practice where no offence disclosed by deposi- 
tions— 50 Vic, No. 17, s. 113. 

A prisoner committed for sentence to the Criminal Sittings of the Supreme 
Conrt on a charge of having committed an unnatural offence with a male, on his 
arraignment on the charge before that Court, pleaded guilty to an attempt to 
commit the offence, which plea was accepted by the Crown. Upon the depositions 
taiien before the committing justices, it appeared that the prisoner was the pathic 
in the offence, he having induced the agent, who was a boy under 11 years of 
age, to do the act. 

Held, that in the case of a prisoner committed for sentence and pleading guilty 
the judge has power to reserve for the consideration of the Court a question of 
law arising on the depositions. 

Held, nlso, that sexual capacity on the part of the agent is a necessary element 
in every offence involving carnal knowledge, and that, as it is a presumption of 
law that that element is not present in the case of a boy under 14 years of agef 
the prisoner could not, on the facts disclosed by the depositions, be convicted 
either of the offence charged, or an attempt to commit that offence. 

A plea of not guilty was ordered to be entered. 

Ceown" Case Reserved by Griffith C.J. at the Rockhampton 
Criminal Sittings. 

William Moody was committed for sentence to the Criminal 
Sittings of the Central Court on a charge of having committed an 
unnatural offence with one W. F. The prisoner pleaded guilty 
to the charge, but, on the suggestion of the presiding Judge 
(Griffith C.J.) the Crown accepted a plea of guilty of an attempt, 



CEIMINAL REPORTS, 1860-1907- . 345 

and that plea was entered. The depositions taken before the ^- v.Mqovi. 
•committing justices disclosed the facts appearing in the head note. 

Griffith C.J. reserved for the consideration of the Court the 
following questions : — 

(1.) Whether, in the case of a prisoner committed for sentence, 
and pleading guilty, a question of law arising upon the depositions 
can be reserved for the consideration of the Supreme Court ; and 

(2.) If so, whether, upon the facts appearing in the depositions 
in this, case, the prisoner could be convicted of the offence with 
which he was charged, or an attempt to commit that offence ; 
and postponed judgment until after the decision of these questions, 
and remanded the prisoner to custody. 

Rutledge, for the Crown : With regard to the power of the judge 
to reserve the point in question, the present case is distinguishable 
from the EngUsh case of R. v. Clurk (L.R., 1 C.C. 54), inasmuch as 
the statutory provisions with regard to the committal of prisoners 
for sentence are peculiar to this colony, and the plea of guilty in 
the inferior court may be regarded as merely an assent to the 
truth of the statements of the witnesses, irrespective of the legal 
effect of the facts assented to. A prisoner committed for sentence 
is in the same position as a prisoner after verdict of guilty, but 
before sentence, and as an examination by the judge of the 
depositions taken in the lower court is necessary in order to 
determine the proper punishment to be inflicted, any question of 
law arising on the depositions is to be deemed as arising on the 
trial, and, therefore, may be reserved for the consideration of this 
Court. 

With regard to the guilt of the prisoner on the facts disclosed 
by the depositions, the case of R. v. Allen (1 Den. 364, 3 Cox C.C. 
270) seems indistinguishable from the present case, and, on the 
authority of that case, the Crown Prosecutor found a true bill. 
Unfortunately, no reasons are given for the judgment in R. v. 
Allen, and that case, moreover, is inconsistent with later cases, 
especially that of R. v. Waite (1892, 2 Q.B. 600). In fact, all the 
decisions, except R. v. Allen, seem to point to a recognition of the 
doctrine that a boy under the age of 14 cannot commit an offence 
of a sexual nature. He also cited R. v. Jacobs (R. & R. 231), R. 
V. Ring (61 L.J. M.C. 116), R. v. Brown (24 Q.B.D. 357), R. v. 
Collins (33 L.J. M.C. 177), R. v. Rexspere (1 Moo. C.C. 342), R. v. 
Cousins (6 C. & P. 351). 

The prisoner was brought up in custody. 

C.A.V. 



S4& 



QUEENSLAND JUSTICE OF THE PEACE. 



E. V. MooDT. 3rd November. 

Griffith C.J. Gbifjith C.J. : In this case, the prisoner was charged with 

an offence of a sexual nature, and was committed for sentence. 
On his arraignment he pleaded guilty, but, at the suggestion of 
the Judge, and with the consent of the Cro^vn, he pleaded guilty 
to having attempted to commit the offence. On referring to 
the depositions, it appeared that the other and active party to 
the alleged offence was a boy under the age of 11 years, and I 
reserved the question whether there could be a conviction under 
the circumstances. The case is not distinguishable from the 
case of B. v. Allen (3 Cox, C.C. 270). It is, indeed, the same case ; 
and, in that case, a very strong Court held that the conviction was 
good. It is, however, impossible to reconcile that case with the 
case of R. v. Waite (ubi sup.), decided in 1892. It is absolutely 
impossible to reconcile the two cases, and the question is 
which should be followed. In my opinion, the law with 
respect to offences of this character is that sexual capacity — that 
is, the absence of impotence — is an essential element of the 
offence. If that element is not present, there cannot be an 
offence. It is a presumption of law that that element does not 
exist in the case of a boy under 14 years. That is the law as 
laid down by Hale, and that is the only principle, I think, upon 
which R. V. Waite can be supported. In the present case, there- 
fore, it is a presumption of law that the act alleged to have taken 
place could not have taken place. It doe&not, however, follow 
that the prisoner could not be convicted of an attempt to commit 
the offence ; but, under the circumstances, it must, I think, 
be taken that he knew that the boy was under 14 years of age, 
and that he knew that it was impossible, in point of law, for 
the offence that he was alleged to have attempted to commit 
to be committed. I think a man cannot be charged with attempt- 
ing to commit an offence which is impossible of being committed, 
and which he knows to be impossible of being committed. There- 
fore, I think that the prisoner ought not to have been convicted 
either of the offence or of attempting to commit it. 

Another question arises — whether under such circumstances 
the question could be reserved for the opinion of this Court. 
The procedure of committal for sentence is peculiar to Queens- 
land. It is provided for by s. 113 of The Justices Act, which 
enacts that when a defendant is committed for sentence, the Court 
to which he has been committed shall, upon the arraignment, 
and upon the production of the depositions and the defendant's 



CEIMINAL REPORTS, 1860-1907. 



347 



statement, direct a plea of guilty to be entered, and pass sentence ^- "• Moody. 

upon him according to law. It follows, therefore, that it is the Griffith C.J. 

duty of the Court to require the production of the depositions, 

and to examine them and the statement of the defendant, and 

then to pass sentence according to law. The duty of examining 

the depositions being therefore cast upon the Judge, I think that 

any question of law arising upon that examination is a question 

of law arising at the trial. I therefore think that the question 

could be reserved for the consideration of the Full Court. The 

Criminal Practice Act provides that upon the hearing of a case 

the Court shall have power to hear and determine the question 

reserved, and to reverse, affirm, or amend the judgment, or avoid 

or arrest the judgment, or order judgment to be given in some 

other Court, or make such other order as justice may require. 1 

apprehend that it is the duty of the Court to do as far as possible 

what the Judge at the trial ought to have done. Now, what 

ought the Judge at the trial to have done if he had known the 

law as we now know it ? Of course, he is supposed to have 

known it. I think the Judge at the trial ought to have directed 

the plea of not guilty to be entered, and left it to the Crown to 

take such further steps by tiolle prosequi or otherwise as they 

thought fit. And I think that it is competent for the Court now 

to do what the Judge at the trial ought to have done — that is, 

to direct the plea of guilty to be struck out and the plea of not 

guilty to be entered. I think that under the circumstances that 

is the proper order to make. 

Cooper J. : I am of the same opinion, and for the same reasons. Cooper J. 

Real J. : I agree with the judgment of my brother Judges RealJ. 

reluctantly, because personally I would have come to a conclusion 
entirely different from the learned Judges who have decided the 
cases of R. v. Waite and the other cases to the like effect, on 
which my learned brothers rely. That is to say, I entirely differ 
from what appears to be the reasons and the grounds of their 
decision in those cases. Under the old practice it was plain and 
simple that emission was necessary to contribute the offence 
of carnal knowledge, and it was also necessary to constitute the 
abominable offence ; and a boy under 14 years of age under that 
state of the law was held to be physically incapable of committing 
the offence. The presumption of law was that he was physically 
incapable. That state of the law has been altered. Section 64 
of The Offences against the Person Act of 1867 provides that 



348 



QUEENSLAND JUSTICE OF THE PEACE. 



E. V. Moody. 
Real J. 



Griffith C.J. 



" Whenever upon the trial for any offence punishable under this 
Act it may be necessary to prove carnal knowledge, it shall not 
be necessary to prove the actual emission of seed in order to 
constitute carnal knowledge, but the carnal knowledge shall be 
deemed complete upon proof of penetration only." 

I think, on the alteration by that Act, it was plain and simple 
that the grounds of the former decisions as to incapacity were 
gone, and the Legislature made the penetration constitute the 
carnal knowledge. Therefore, if that was the state of the law, 
as I interpret the Act, this offence could have been committed ; 
but the recent cases, as late as 1893, have absolutely decided, 
and, indeed, all the cases since the passing of that Act, that the 
law as previously laid down still remains, and that a boy under 
14 years is by law incapable of carnal knowledge. That being 
so, and the Jndges consistently laying that down, and ParUament, 
which must be taken to know that that is their view of the law, 
not having interfered with it, I feel bound to come to the con- 
clusion that my brother Judges have come to — that this boy 
must be considered in law physically incapable of the offence. 

Griffith C.J. : The plea of " guilty " will be struck out, 
and the plea of " not guilty " entered, and the prisoner will be 
remanded to the next sittings of the Central Court. 



1897. 
Sth November. 

GriffltK C.J. 
Cooper J. 
Real J. 



[Full Court.] 

JONG SONG V. JOY HOY AND OTHERS. 

[8 Q.L.J. 109 ; N.C. 79 Note.— See. 2 of 56 Vie., No. 3, is repesded.] 

Criminal laiu — Prisoners charged jointly — Right of accused to give 
evidence on behalf of fellow accused — 56 Vic, No. 3, ss. 2, 3. 

Where two or more accused persons are jointly charged with an offence, each 
of the defendants is a competent witness on behalf of the other. 

Application on behalf of Joy Hoy to make absolute an order 
nisi to quash a conviction before justices of the applicant on a 
charge of having, with others, committed an assault on Jong 
Song, on the ground that the justices had wrongfully refused to 
admit evidence. 

The appellant was, with others, charged before justices with 
having committed an assault upon the respondent Jong Song. 



CKIMINAL REPORTS, 1860-1907. 



349 



One of the accused was tendered as a witness on behalf of the 
others, but the magistrate, being pressed to that course by the 
respondent's sohcitor, refused to allow the evidence to be given. 
The defendants were convicted, and an order nisi was granted 
by Griffith C.J. to quash the conviction on the ground above 
stated. 

Lukin, for appellant, cited Criminal Law Amendment Act, 
1892, s. 7 ; R. v. Payne (L.R. 1 C.C. 349) ; R. v. E. and I. Martin 
(17 Cox C.C. 36). 

The co7nplainant in person. 

Griffith C.J. : Before the Act of 1892, it was clear, on the 
authority of R. v. Payne (L.R., 1 C.C. 349), that one of two persons 
jointly accused could not be called as a witness, on the ground 
that a prisoner on his trial could be neither examined nor cross- 
examined. The Evidence and Discovery Act of 1867 expressly 
provided that rule of law. The Legislature in 1892, however, 
repealed that proviso of s. 7, which corresponds to the EngUsh 
enactment on which that decision was based. Everyone can give 
evidence unless he is by some law forbidden to do so. There is 
now no law to prevent the witness who was tendered in this case 
from giving evidence. That practice has been followed in the 
Supreme Court, and it is much to be regretted that it has not 
been observed in the PoUce Court. 

As the evidence was rejected on the objection of the com- 
plainant's solicitor, when the justices would otherwise have 
admitted it, the respondent should pay the costs. 

Order absolute to quash conviction, with costs. 

Cooper and Real JJ. concurred. 

Sohcitors for appellant : Bouchard <fc Holland. 



Jong Sonq v. 

Joy Hoy ani> 

Others. 



Griffith C.J. 



Cooper J. 
Eeal J. 



R. V. RUTH TIDBURY. 

[8 Q.L.J. N.C. 111.— Note.— Sec. 42 of 53 Vic, No. 12, is repealed, see now ss. 
660-662 of Criminal Code.] 

Defamation — No bill filed — Defendant's Costs — 53 Vic, No. 12, s. 42. 

The defendant was committed for trial for defamation on the 
complaint of a private prosecutor. No true bill was found. 
On an application by the defendant for costs against the private 
prosecutor : 



1898. 
20th October. 

Chubb J. 



350 



B. V. Ruth 

TiDBDRT. 



QU -^NSLAND JUSTICE OF THE PEACE. 

Held, that the Statute 53 Vic, No. 12, only entitled a defendant 
to costs when he is acquitted upon an information tried [s. 42 (1), 
(3)], and that no information having been filed, and consequently 
the defendant not having been tried and acquitted, the case did 
not come within the provisions of the Statute. 



1898. 
lOth May. 

Chubb J. 



Chubb J. 



REGINA V. CRAINE. 
[9 Q.L.J. 47 ; N.C. 13.] 

Criminal law— Trial — Atheist juror — Disqualification ^ 

Held, that a juror who has no religious belief is not competent to serve as a juror, 
and that his name must be removed from the panel. 

Trial of William Henry Craine for a rape. 

A juror being called objected to be sworn. In answer to 
questions put by the learned Judge, he stated that he had no 
religious belef whatever, but was willing to pledge himself in any 
words the Court might think fit, to give a verdict according to 
the truth. 

Chubb J. : The 7th section of the principal Jury 4 ci requires 
notice of the jury lists to be affixed on the door of every church, 
chapel, and place of religious worship in the jury district. This 
implies that jurors attend places of religious worship and presum- 
ably have a religious belief. The form of jurors' oath " So help 
you God," given in The Oaths Act, s. 22, and of affirmations 
(ss. 17, 18, 19), clearly apply only to persons having a rehgious 
belief. The Oaths Act Amendment Acts of 1876 and 1884 can only 
be applied to interpreters and witnesses. On these grounds 
I think the juror is not competent. I am further confirmed in 
my view by the fact that an Imperial Statute (51 and 52 Vic, 
o. 46) was passed jn 1888, which has not yet been adopted in 
Queensland, by which persons who have no religious behef may, 
" in all places, and for all purposes," make affirmations, " omitting 
any words of imprecation or calling to witness ; " so that in 
England an atheist may now serve on a jury, but not in Queens- 
land as the law stands at present. I decide, therefore, that the 
juror being admittedly an atheist, is not competent to serve 
on the jury, and I direct the sheriff to remove his name from the 
panel. 



CEIMINAL REPORTS, 1860-1907. 



851 



REGINA V. ROYS. 

1 9 Q.L.J. 47 ; N.C. 14.— Note.— 55 Vic, No. 24, ss. 4, 6, and 10 are repealed, see 
now ss. 212, 215, and 578 ot Criminal Code. See also R. v. Abbott, (9 Q.L.J. 
92), post.] 

Criminal law^Carnally knowing girl under twelve — Attempt — i898. 

Indecent assault — 55 Vic, No. 24, ss. 4, 6, 10 — Corroboration. llthMay. 

Hdd, that the fact that the child assaulted was found shortly after the committal Chubb J. 

of the offence to be suffering from a disease which might be either of a venereal 
or of an innocent character, was not a corroboration in some material particular 
as required by the Statute. 

Trial -of George Houghan Roys for carnally knowing a girl 
under twelve. 

It appeared from the evidence that the ofience was committed 
on the 26th November, 1897, upon a child aged ten years. Stains 
were first noticed on the child's underclothing about the 4th 
December, followed in a day or two by a discharge. On the 11th 
December, the child was examined by a legally qualified medical 
practitioner. His evidence was that the child was suffering from 
a purulent discharge presenting the same characteristics as those 
of gonorrhoea, but he could not say that it was gonorrhoea ; that 
children get purulent discharges from ill health, which it is im- 
possible to distinguish from gonorrhoea. On the 15th December, 
he examined the prisoner and found him to be suffering from 
undoubted gonorrhoea ; that the disease develops in a male in 
four to five days, and under eight days, unless in very exceptional 
cases. 

At the close of the case for the Crown, Perske, for the prisoner, 
submitted that there was no corroborative evidence to go to the 
jury. 

Chubb J. : I am of opinion that there is no corroborative evi- Chubb J. 
dence of the felony charged, or of the attempt, to go to the jury. 
The only corroborative evidence relied upon by the Crown is the 
discharge from which the child was suffering. It is consistent 
with the evidence that the discharge may have been of a perfectly 
natural and innocent character, and as the professional witness 
declined to say positively what it was, I do not think it ought to 
be left to a jury, who are not specialists, to determine the nature 
of a disease which a skilful practitioner says he cannot diagnose. 

Solicitor for the prisoner : H. Perske, Charters Towers. 



352 QUEENSLAND JUSTICE OF THE PEACE. 

REGINA V. LANG AND MURPHY. 

[9 Q.L.J. 48 ; N.C. 15.— Note.— 29 Vic, No. 6, s. 10, is repealed, see now s. 391 ot 
Criminal Code and s. 398 (III.)] 

1898. Criminal law— Cattle stealing— 2^ Vic, No. 6, s. 10— Animus 

nth May. furandi — Intention. 

Gh:ibb J. l^ a_ slaughterman (servant to A., a, butcher), drove a cow belonging to B. into 

A.'s yard, assisted by M., and directed C. (another servant of A.) to kill it. CV 
killed, skinned, and cut up the animal, placing the skin and horns in his master's 
hide house, and the body in his master's boiling-down pot, where it was cooked 
and afterwards given to A's pigs for food. A. knew nothing of the transaction. 
Held, that there was evidence of stealing against both L. and M. to go to the 
jury. 

Trial of William Abraham Lang and Martin Murphy for cattle 
stealing. 

Evidence of the facts stated in the head note having been, 
adduced by the Crown : 

Macnaughton and Milford, for the prisoners, submitted that there 
was no evidence of steaUng to go to the jury, there being no 
evidence of an " animus furandi," or that the act was done " lucri 
causa." They cited : R. v. Cabbage (R. & R. 292), R. v. Morfitt 
(R. & R. 307), R. V. Privett (1 Den. 193), R. v. Richards (1 C. & K. 
532), R. V. Deering (11 Cox 298). 

Chubb J. : On the authorities I shall submit the case to the 
jury, but I will save the point if you desire it. 

At the request of counsel for the prisoners, the question was 
reserved. 

Chubb J. Chtibb J. (in summing up to the jury) : " Theft," as defined by 

Stephen J., in his Digest of the Criminal Law, article 295, is 
" the act of deaUng from any motive whatever, unlawfully and 
without claim of right, with anything capable of being stolen . 
. with the intention of permanently converting that 
thing to the use of aiiy person other than the general or special 
owner thereof." Keeping this definition in mind, if the jury are 
of opinion that the prisoners took the animal, and caused it to be 
killed and dealt with, as proved, with the fraudulent intention of 
permanently depriving the owner of it, without his consent, 
either for some benefit to themselves, or for the benefit of the 
prisoner Lang's master, they are guilty of stealing. 

The prisoners were acquitted. 



CRIMINAL EEPOETS, 1860-1907. 



353 



REGINA V. WARDELL. 

[9 Q.L.J. 49 ; N.C. 12.— Note.— See also R. v. Johnstone (1907 S.R.Q. 155), post.] 

Criminal law — Trial — Practice — Challenge of jurors — Order to 

stand by. 

Held (following B. v. Freeman, 6 Q.L.J. 281), that the time during the em- 
panelling of a jury at which the Crown shall show cause of challenge is in the 
discretion of the Court. 

S. V. Shaw (B.C.B. 3rd June, 1885) not followed. 

Tbial of Bernard WardeU for maliciously killing five horses. 

When the panel of jurors had been gone through twice, seven 
jurors only had been sworn, the prisoner's advocate having 
peremptorily challenged nine jurors. The other jurors, fifteen 
in number, had been ordered to stand by. The first of these 
jurors was then again called, and the Crown asked that he be 
ordered to stand by. 

Selwyn- Smith, advocate for the prisoner : The Crown must now 
show cause of challenge. This is the third time of calling the 
panel. 

Chubb J. : This point has been determined in R. v. Freeman 
(6 Q.L.J. 281) by Griffith C.J., but I am aware of a decision to 
the contrary by Harding J., viz. : R. v. Shaw (B.C.R. Zrd June, 
1885) not reported. I must now decide between the two. 

Macnaughton {amicus curiae) : It is the invariable practice of 
Cooper J. to require the Crown to show cause of challenge on the 
third calling over. 

Chttbb J. : I have had occasion before now to consider this 
point, and my opinion has always been the same as that expressed 
by the learned Chief Justice in R. v. Freeman, and notwithstand- 
ing R. V. Shaw. I have always foUowed Mansell v. The Queen 
(D. & B. 375). The authorities are collated in Archbold 21st Ed. 
170-2. The panel must be exhausted before the Crown can be 
compelled to show cause of challenge — that is, it must appear 
that a full jury cannot be obtained if the Crown is allowed to 
stand by peremptorily, so that the " inquest would remain 
untaken." This is in the discretion of the Court, according 
to the usual practice of the Court. Further, the prisoner 
has not exhausted all his challenges, and he is bound to 
show all his causes of objection before the Crown can be called 
upon to show cause of challenge. The juror must stand by. 



1898. 
19th May. 

Chiihh J. 



Chubb J. 



354 



QUEENSLAND JUSTICE OP THE PEACE. 



Begina 0. 
Wabdell. 



The third calling over of the panel was then completed, the 
Crown directing eleven jurors to stand by, and three jurors being 
sworn. Nine jurors remaining, the panel was called over a fourth 
time, and two jurors sworn, which completed the jury — none 
being challenged or ordered to stand by. 

At the request of Sdwyn- Smith, the questions were reserved : 

1. Whether on the third calling over, the jurors were rightly 
ordered to stand by. 

2. Whether the fourth calling over was rightly allowed. 

The prisoner was acquitted. 

Solicitor for prisoner : G. Selwyn-Smith, Townsville. 



1898, 
1st November. 

Griffith C.J. 
Real J. 
Paul A.J. 



[Full Coubt.] 

R. V. ABBOTT. 

[9 Q.L.J. 92 ; N.C. 36.— Note.— 25 Vic, No. 24, s. 4, is repealed, see now s. 212 of 
Criminal Code. Sec. 6 of Criminal Practice Act of 1865 Is repealed, see now 
s. 584 of Criminal Code.] 

Criminal law — Evidence — Carnally knowing a girl under the age of 
twelve years — Corroboration of evidence of girl in some material 
particular — 55 Vic, No. 24, s. 4. 

A prisoner was charged, under s. 4 of The Criminal Lalv Amendment Act of 
1891, with unlawfully carnally knowing a girl under the age of twelve years. 
The evidence relied upon as corroborating that of the child, who deposed to the 
commission of the offence, consisted of medical evidence that the girl had been 
recently carnally known by some man, and other evidence that the prisoner 
had, at the time of the alleged offence, been living near the house of the child's 
parents, and had, by reason of the natxire of the locality, the opportunity to 
commit the alleged offence ; that, prior to the date of the alleged offence, the 
prisoner had stated he was suffering from a venereal disease ; that some five 
weeks after the alleged offence, the girl was found to be suffering from gonorrhoea, 
and that prisoner, on being examined a few days later, was found to be suffeiing 
from an affection which might have been caused by gonorrhoea as well as by 
some other disorders. The prisoner was found guilty and sentenced, Griffith C.J. 
reserving for the Full Court the question whether the evidence of the girl, impli- 
cating the prisoner, had been corroborated by other evidence in some material 
particulars, as required by s. 4 of The Criminal Lalu Amendment Act of 1891. 

Held, that there was corroboration in some material particulars, and that the 
prisoner was rightly convicted. 

Special case stated by Griffith C.J., for the consideration of 
the Full Court under the Criminal Practice Act of 1865. 



CRIMINAL EEPOETS, 1860-1907. ^55 



The prisoner was charged before Griffith C.J. at the Roma 
Circuit Court, on the 27th September, 1898, with an indecent 
-assault on a girl under the age of twelve years. During the pro- 
gress of the case, in exercise of the power conferred by s. 6 of The 
Criminal Practice Act of 1865, the judge discharged the jury and 
directed the defendant to be indicted for the felony apparently 
disclosed by the evidence. The prisoner was then re-indicted for 
the felony of unlawfully carnally knowing a girl under the age of 
twelve years. The offence was alleged to have been committed 
in a secluded spot at the edge of the water of the Warrego River, 
at Cunnamulla. The evidence, in corroboration of the girl her- 
self, was to the following effect : She had been recently carnally 
known by some man, as the hymen had been recently ruptured. 
For about a month before the date of the alleged offence, the 
prisoner was living in a bough shed about 80 yards distant from 
the house in which the girl lived with her parents, on the high 
bank of the Warrego River, during which time he was frequently 
in the company of the girl, and her sisters and brothers, and used 
to fish with them in the Warrego River, below the bank on which 
the girl's parents' house was situated. A few days before the 
alleged offence, prisoner was seen examining his person, and said 
in answer to a question, " I have got a dose ; I got it from a black 
gin." On a day which the girl's mother fixed at three days after 
the prisoner's departure from the locality — the offence being 
-alleged to have been committed on the day before he went — the 
girl complained to her mother of soreness in her person. A day 
or two later, and again a fortnight later, the mother noticed signs 
of a discharge on the chUd's drawers. The girl was examined by 
a medical practitioner about five weeks after the alleged offence, 
when she was found to be suffering from gonorrhoea, and the 
prisoner, when arrested a few days later, was found to be suffering 
from an affection which might have been caused by gonorrhoea, as 
well as by some other disorders. The rupture of the girl's hymen 
had occurred within three months. The jury found the prisoner 
guilty of the felony, and also of the misdemeanour of indecent 
assault on a girl under the age of twelve years. The learned judge 
passed sentence of ten years' penal servitude upon the conviction 
for the felony, but reserved for the consideration of the Supreme 
Court the question whether there was evidence implicating the 
prisoner, corroborating in any material particular the evidence of 
the girl herself. The learned judge also passed sentence of three 
years' penal servitude upon the conviction for misdemeanour, and 



B. V. Abbott. 



356 QUEENSLAND JUSTICE OP THE PEACE. 

E. V. Aebott. respited execution upon the sentence for felony, and committed 
the prisoner to prison. 

Power, for the Crown, to support the conviction, cited B. v, 
M'Ghie (6 Q.L.J. 151), E. v. Boys (9 Q.L.J. 47), and B. v. Gregg' 
(18V.L.R. 218). 
The prisoner in person offered no argument. 

The judgment of the Court was delivered by 
Keal J. Real J. : In this case the prisoner was convicted of a felony, and 

was sentenced. The question is whether there was any evidence 
corroborating, in a material particular, the evidence of the 
little girl ? We have to state an answer to that question — to the 
case stated by the learned Judge. That case puts the facts 
shortly as they appear on the evidence. It does not give us- 
the details of the evidence, but gives us, as it were, the essence 
of them. There is this in. corroboration of the girl, that she 
had recently been carnally known by some man. There is no 
doubt about that. The hymen had been recently ruptured. For 
about a month before the date of the alleged offence, the prisoner 
was Uving in a bough shed some 80 yards from the place where 
the girl Uved with her parents on the banks of the Warrego. 
He was frequently in the company of the girl, her sisters, and 
brothers, and used to fish with them in the Warrego River. 
A few days before the alleged offence, the prisoner was seen 
below the bank examining his person, and he said to a person, 
" I have got a dose ; I got it from a black gin." What inference 
is to be drawn from that ? That he had got, in connection with 
a black gin, some sexual disease. That is the only inference 
that can be drawn, and that was only a few days before the 
commission of the offence. Some person had connection with 
the child. The child swore it was the prisoner. The child was- 
not shown to have known anything of these circumstances. 
Three days after the prisoner's departure from the locaUty — 
the offence having been alleged to have been committed the 
day before he went away — the girl complained of soreness in, 
her person, so that, immediately after the action which is alleged 
against the prisoner, the girl developed the symptoms of soreness 
in her parts. A day or two later, the mother noticed signs of 
a discharge, and the child was found to be suffering from 
gonorrhoea. The girl said it was the prisoner who had assaulted 
her three days before. Within three days after the child had 
been assaulted, a disease developed in the child, which the medical 



CRIMINAL EEPORTS, 1860-1907. 

practitioner swore was gonorrhoea. The prisoner, at the expira- 
tion of a week or so later, was examined, and it was found that 
he was suffering from something which might be gonorrhoea, 
so that was consistent with his statement that he was suffering 
from a sexual disease. Under these circumstances, the question 
is whether there was any evidence impUcating the prisoner 
corroborating, in any material particular, the evidence of the httle 
girl ? Well, if looking at all the facts, if there was evidence that 
it was a common disease in the neighbourhood, it would widen 
the circle, and perhaps the Judges would have 'to reject it, but 
I do not see why we should take it as a matter of law that persons 
there are generally sufiering from gonorrhoea. Every circum- 
stance points to the prisoner as the person who committed the 
offence. Under these circumstances, it seems to me that, in 
this particular case, there was evidence to go to the jury in corro- 
boration of the child's statement. Speaking for my brother 
Judges in that respect, I may say that they have also come 
to the conclusion that there was evidence which might go to the 
jury. The result, therefore, will be that the conviction and 
the sentence for the felony will be confirmed, and the conviction 
for the misdemeanour will be quashed. 



357 

V. Abbott. 
Beal J. 



R. V. HART. 

[9 Q.L.J. 95 ; N.C. 48.— Note.— See now s. 430 of Criminal Code.] 

Evidence — Opinion of expert as to honesty of banking transaction 
— Question for the jury. 

Upon the trial tJf defendant bank directors, charged with conspiring with intent 
to defraud shareholders and depositors, evidence was given that interest was 
credited to certain accounts which had, in fact, not earned any interest. Counsel 
for the prosecution asked a witness, who was tendered as an expert in banking, 
for his opinion as to the propriety of so crediting the accounts. 

Held, that the evidence was inadmissible. 

Trial of F. H. Hart and others at the Brisbane Criminal 
Sittings on a charge of conspiring among themselves and with 
other persons with intent to defraud the depositors in, and share- 
holders of, the Queensland National Bank. 

In this case the defendants, who were the directors of the 
Queensland National Bank, were charged with conspiring with 
intent to defraud the depositors and shareholders of the Bank. 



1898 
4th November. 

Griffith C.J. 



358 



QUEENSLAND JUSTICE OP THE PEACE. 



B. V. Hart. The prosecution adduced in support of the charge evidence that 
interest had been credited to several accounts which had not in 
fact earned interest. Edward Griffith, a witness tendered by 
the prosecution as a banking expert, was asked by counsel for the 
prosecution to give an opinion as to whether interest was justifi- 
ably charged to those accounts. 

Lilley, Feez, and Lukin, for various defendants, objected. This 
is opinion evidence, and not admissible. There is no authority 
for the admission of opinion evidence on a mere question of 
propriety. Moreover, the question is really the issue between, 
the parties, and is for the jury alone. 

Mutledge : In the Glasgow Bank Case, evidence of this nature 
was admitted and relied upon by the learned Judge in his charge 
to the jury. Moreover, the jury are quite as competent to form 
an opinion in this matter as the witness, and therefore the evidence 
is admissible. (Phipson p. 359, Fenwick v. Bell, 1 C. & K. 312.) 

Griffith C.J. Griffith C.J. : I must have regard to the issue that is before 

the jury to try. The issue involves a charge of fraud, of dis- 
honesty, of dishonesty of intention. If the charge against the 
defendants were negUgence in a civil action, possibly difierent- 
considerations might apply. Possibly, I say. I am not at all 
sure they would, but I must have regard to the issues before the 
jury in this case, and I must have regard to the substance of the 
question, not to its form. The jury will be asked by the Crown 
to come to the conclusion that these amounts were credited to 
interest received, although they were not actually earned, and 
that that was done dishonestly. Having regard to that, the 
question in substance amounts to this. Was it honest to include 
these amounts — to put these amounts to interest received ? 
It is quite clear that a question of this kind cannot be asked 
according to our law — asking a man whether the conduct of 
another man is honest. It is a matter of which the jury only are 
judges. I reject the evidence tendered. 

Solicitors for defendants : Macpherson & Son and G. V. 
Hellicar. 



CEIMINAL EEPOKTS, 1860-1907. 



859 



In re CARUCHET. 

[9 Q.L.J. 122 ; N.C. 67.— Note.— See Commonwealth Extradition Act 
(No. 12 ot 1903).] 

Habeas corptos — Return to writ — Prisoner under remand on charge 'i-^9^- 

of felony — Offence not committed within territorial jurisdiction *'' ^ ru ary. 
of Queensland. Griffith G.J, 



The return to a writ of hdbms corpus stated that the appellant was detained 
in Her Majesty's Gaol at Brisbane under remand on a charge of larceny, but 
did not show that the offence was charged to have been committed within the 
territorial jurisdiction of the colony of Queensland. 

Hdd, that the return was insufficient, and that the prisoner must be discharged. 

Motion on behalf of Arthur Alexandre Caruchet, on the return 
of a writ of habeas corpus, that he be discharged from custody. 

The prisoner was arrested in Queensland by warrant on a charge 
of larceny of a boat in New Caledonia, and was brought before 
the Police Magistrate at Brisbane on a charge of larceny, who, 
on 21st February, remanded the prisoner to the custody of the 
superintendent of Her Majesty's Gaol at Brisbane. On 24th 
February a writ of hqbeas corpus was, issued, directed to the 
superintendent of the gaol, to which a return was filed by the 
superintendent showing that the prisoner was detained under 
warrant of remand on a charge of larceny. 

Fewings moved that the prisoner be discharged. The return 
does not show that the offence is alleged to have been committed 
within the territorial jurisdiction of Queensland, and is bad 
on the face of it. 

Connolly, for the Crown, submitted that the return was true, 
and that the Court could not go behind it. In answer to the 
Court, he said that he did not suggest that an amended warrant 
could be substituted alleging that the offence had been com- 
mitted in Queensland. 

Geiffith C.J. : The prisoner is brought up under a writ of 
habeas corpus, and it appears by the return that he is in custody 
under a warrant of remand upon a charge of larceny. At first 
sight that seems good, but it is suggested that the alleged larceny 
was not committed within the territorial jurisdiction of Queens- 
land. The writ was granted on affidavits by which it appeared 
that the prisoner was arrested upon a charge of larceny com- 
mitted in New Caledonia. There is no doubt that the tribunals 



Griffith C.J. 



360 



QUEENSLAND JUSTICE OP THE PEACE. 



In re Cabcohet. of Queensland have no jurisdiction to deal with offences com- 
GriffitTc.J. mitted beyond the territorial Hmits of Queensland. If that 
were ever liable to doubt, it was settled by McLeod v. The Attorney- 
General of New South Wales (1891, A.C. 455). The tribunals 
of this colony have no jurisdiction to punish offences committed 
abroad, unless under the authority of some Imperial statute, 
which is a matter that does not come into question here. Now 
the Justices Act prescribes a form of warrant of committal on 
remand (Form 16 in the Third Schedule to the Act), which recites 
that the accused person was charged before justices for that, 
&c., " as in the warrant to apprehend." The warrant to 
apprehend is Form 8, and it recites that complaint has been 
made for that the accused on such a date and at such a place 
committed such an offence. The place where the offence was 
committed is a material element in determining whether the 
Court has jurisdiction to deal with the matter or not. The 
return in the present case must, I think, be taken to be true in 
fact. I have been invited to go behind it and ascertain the 
actual facts, but I do not think, with the light I have now, that 
in a criminal case the Court has any jurisdiction to do so. The 
Statute 56 Geo. III., c. 100, which gives that power, only deals 
with cases that are described as " other than for some crime or 
supposed criminal matter." The objection, however, that the 
return is bad on the face of it in not showing that the alleged 
offence was committed within the jurisdiction of Queensland is a 
substantial one, and the only question is whether I am bound 
to read the allegation in the return that he was charged with 
larceny as meaning that he was charged with larceny committed 
in Queensland. Having regard to the forms given by the statute, 
and the general rule that nothing is intended against Uberty 
in the proceedings of inferior tribunals, I come to the conclusion 
that I am not bound to read the statement that the prisoner was 
remanded on a charge of larceny as meaning larceny committed 
in Queensland. If this were merely a technical objection, and 
the real charge against the prisoner were one of larceny committed 
in Queensland, I should feel disposed to adjourn the matter for 
the purpose of allowing an amended warrant of committal to be 
substituted ; but Mr. Connolly, in supporting the case for the 
Crown, has not suggested that any other warrant could be sub- 
stituted. I propose, therefore, to deal with the matter on the 
basis that the prisoner is on remand charged with an offence 
committed in New Caledonia. There are provisions for the 



CRIMINAL EEPOETS, 1860-1907. 



361 



extradition of offenders who have committed offences in foreign 
parts. They are contained in The Extradition Act, and that is an 
Act which can only be put into operation at the request of the 
accredited representative of a foreign power. No question of 
that kind arises in this case. I therefore am bound to consider 
the prisoner as in custody for an offence which does not appear 
to have been committed within the territorial jurisdiction of 
Queensland. That being so, the courts of this colony have no 
jurisdiction to deal with it, and I am bound to order the prisoner 
to be discharged. 

Solicitor for A. A. Caruchet : W. C. Harding. 

Solicitor for the Crown : J. H. Gill. 



In re Cakuchet. 
Griffith C.J. 



[Full Coxjbt.] 

THE QUEEN v. GLEN. 

[9 Q.L.J. 140 ; N.C. 80.— Note.— See ss. 28 and 391 of Criminal Code.] 

Criminal law — Larceny — Animus fur audi — Finding of jury that 
accused unaware of what he was doing. 

On the trial of a prisoner for larceny, the jury found a verdict of guilty, but 
added a special finding that the prisoner was under the influence of drink at the 
time he committed the oflEence, and did not know what he was doing. 

Bdd, that that amounted to a finding of an absence of animus furandi, and that 
as the intent to steal was an essential ingredient of the crime of larceny, the 
■conviction must be quashed. 

Cbown Case Reserved by a District Court Judge. 

Glen was charged at the Criminal Sittings of the District Court 
at Brisbane with larceny. The jury found a verdict of guilty, 
but added a rider that the prisoner was under the influence of 
drink when he committed the offence and did not know what 
he was doing. The learned Judge (Mansfield D.C.J.) stated a 
case for the decision of the FuU Court as to the effect of thesr 
findings, and ordered the prisoner to appear for sentence aftee 
the decision of the case by the Full Court. 

Woolcock, for the Crown, cited R. v. Farnborough (1895 2 Q.B. 
484) ; RusseU on Crimes, 6th Ed., Vol. 1, p. 144 ; R. v. Doherty 
(16 Cox 306). 

Prisoner, in person, offered no argument. 



1899. 
38th March. 

Griffith C J. 
Power J. 
Paul A.J. 



362 



QUEENSLAND JUSTICE OF THE PEACE. 



The Queen c. 
Glen. 

Griffith C,J. 



The judgment of the Court was delivered by 

Griffith C.J. : In this case the prisoner was convicted of 
larceny, but the jury added a special finding that the prisoner 
was under the influence of drink at the time he committed the 
offence, and did not know what he was doing. I think that this 
must be taken as a special verdict. The crime of larceny involves 
a fraudulent intention, or what is called an animus furandi. 
It was pointed out in the case of The Queen v. Farnhorough that 
the animus furandi is an essential ingredient in the crime of 
larceny — that is, the intention to steal is an essential ingredient. 
Here the jury found that the prisoner did not know what he was 
doing. If that is so, he could not have had any such intention. 
It is clear, therefore, that the conviction was wrong, and it must 
be quashed and the prisoner be discharged. 

Solicitor for Crown : J. Howard Gill, Crown Solicitor. 



1899. 
30th August. 

Griffith C.J. 
Cooper J, 
Real J. 



[Full Coukt.] 

R. V. HAMILTON. 

[9 Q.L.J. 251 ; N.C. 115.— Note.— See now s. 597 of Criminal Code.] 

Criminal law — Practice — Indictment — Prisoner indicted by and 
pleading to false name — Motion in arrest of judgment — 
Evidence. 

A prisoner was indicted by the name of Hamilton, and pleaded to that name. 
It appeared in evidence that he had for five days pa.«sed under that name at 
an hotel in Brisbane, but that his real name wa.s M'Donald. The jury convicted 
him, but before sentence counsel moved in arrest of judgment on the ground 
that the prisoner had been indicted under a wrong name. 

Hdi, on a Ciown Case Reserved, that the objection was taken too late, and 
judgment should be pronounced. 

Semble, that even if taken in time, the objection would not have been valid- 

Special Case stated by Noel D.C.J, on the trial of John 
Hamilton for forgery and uttering. 

All the necessary facts appear in the case stated by the learned 
Judge, which was as follows : — 

" The prisoner was tried before me at the last sittings of the 
District Court, Brisbane, for forgery and uttering. He was 
defended by counsel. He was found guilty on both counts. 
After verdict, but before sentence, counsel moved in arrest 



CRIMINAL REPORTS, 1860-1907. 368 

of judgment on the ground that the prisoner was indicted by ^' "• Hamilton. 

the name of Hamilton, whereas the evidence disclosed that his 

name was M' Donald, and that it was too late to amend. The 

prisoner, when arraigned, answered and pleaded to the name of 

John Hamilton. There was evidence that for four or five days 

he was known as Hamilton at an hotel in Brisbane at which 

he stopped, but there was no evidence that he was generally 

known as Hamilton. The arresting constable testified that when 

he arrested the prisoner he gave the name of M'Donald, and denied 

that his name was Hamilton. The prisoner on oath said his 

name was John Hamilton M'Donald. I intimated to counsel 

that I was of opinion that there was nothing in the point, but 

that if he pressed it I was of opinion that I had no option but 

to state a case under s. 48 of The Criminal Practice Act. An 

adjournment was granted to enable counsel to consider the 

matter, and upon resumption counsel said he must press the point. 

Having referred to the cases of R. v. Pieremont (2 Q.L.J. 93), and 

R. V. Duncan (4 Q.L.J. 219), decided by ^He Supreme Court 

Judges, I was of opinion I was bound to sti>.t^e a case for the 

Supreme Court Judges. I therefore postponed judgment, and 

committed the prisoner to prison pending the decision of the 

Supreme Court Judges. The questions for the opinion of the 

Supreme Court Judges are : — 

"I. Ought I to have upheld counsel and discharged the 
prisoner ? 

" 2. Should I have been right to have refused to state a case 
and proceeded to judgment ? 
" I have been requested and agreed to make an addendum setting 
forth a point which I was not formally asked to make a note of at 
the trial. It was as foUows : — That I wrongfully allowed the 
Crown Prosecutor to cross-examine the prisoner from a book 
containing a photograph and previous convictions of a man 
named A. B. H. M'Donald, whereby the jury might have been 
influenced in convicting the prisoner under the name of Hamilton, 
there being no evidence that the prisoner was in any way connected 
with the same record, nor evidence that any such named person, 
nor any prior conviction against any such named person, was 
entered thereon. The facts are that the prisoner, who was shown 
the book, denied in an evasive manner that it was his photograph, 
but admitted that he had served sentences in New South Wales 
of six months with hard labour and four years' penal servitude 
respectively. These were the sentences recorded in the book in 



364 



QUEENSLAND JUSTICE OF THE PEACE. 



B,. V. Hamilton. 



Griffith C.J. 



Cooper J. 
Beal J. 



question, and the prisoner had answered and pleaded to the name 
of John Hamilton." 

A. S. Lilley, for the prisoner : The conviction should be set 
aside. The prisoner was indicted under a wrong name, and the 
error was only discovered by the Crown when it was too late 
to amend. The introduction of the book of photographs was not 
justified by law, and the manner in which the book was produced 
and the practical revelation of its contents were calculated 
to prejudicially affect the prisoner's case with the jury, and on 
that ground the conviction should also be avoided. 

Griffith C.J. : The first objection taken in this case is that 
the prisoner was indicted by a wrong name. He was indicted 
by the name of John Hamilton. He pleaded to the charge by 
that name, and he was convicted by that name. After the 
verdict, objection was taken that his name was not Hamilton, 
but M'Donald. It appeared in the course of the evidence that 
he was sometimes called Hamilton, and there was some evidence 
that his proper name was M'Donald. Formerly, when a prisoner 
took exception that he was wrongly described in the indictment, 
he had to do so by plea in abatement. That practice was aboHshed 
seventy years ago, by a statute which is now re-enacted in s. 19 
of The Criminal Practice Act of 1865. Since then, if the objection 
is taken, and it is proved to be well founded, the Judge will direct 
the indictment to be amended. It was never suggested, as far 
as I know, in the days of pleas in abatement, that an objection 
by way of plea in abatement could be taken after verdict. It is 
clear that the objection was taken too late, if there were anything 
in it. 

The other point I confess I have great difiiculty in apprehending. 
The prisoner was cross-examined by counsel for the Crown, 
and in the course of cross-examination was asked if a photograph 
in a book produced was his photograph. He said that it was not. 
The objection seems to be that the book ought not to have been in 
Court, or that no reference ought to have been made to the photo- 
graph. I do not know what the objection is. The most that 
can be said is that the form of the question was objectionable, 
but that is a matter for an appeal to the discretion of the Judge. 
I cannot see anything in the point at all. The conviction must 
be affirmed. 

Cooper and Real JJ. concurred. 

Solicitor for the prisoner : E. J. Peterson. 



CRIMINAL REPOKTS, 1860-1907. 



365 



[Full Couet.] 
R. V. DUNSHOT. 

[9 Q.LJ. 298 ; N.C. 131.— Note.— See. 42 ol 29 Vic, No. 5, Is repealed, see now 
special provision in s. 468 of Criminal Code.] 

Criminal law — Killing or maiming cattle — Horses — Injuries to 
Property Act of 1865 (29 Vic, No. 5), s. 42. 

The word " cattle," in s. 42 of The Injuries to Froyerly Act of 1865, includes 
horses. 

Crown Case Reserved by Chubb J. 

The prisoner Dunshot was charged, under s. 42 of The Injuries 
to Property Act of 1865, with maiming cattle, the subject of the 
injury complained of being a horse. The prisoner was found 
guilty and sentenced, but the learned Judge, at the request of 
counsel for the prisoner, suspended the execution of the sentence 
pending the decision of the Full Court on a case stated by him as 
to whether the word cattle in s. 42 included horses. 

Butledge A.G., Q.G., Wassell with him, for the Crown, to 
support the conviction. 

No appearance for the prisoner. 

Griffith C.J. : In the year 1707 this point was first raised for 
the decision of the Judges on the construction of 9 Geo. I., c. 22, 
which provided that any person who should unlawfully and 
maliciously kill, maim, or wound any cattle, should suffer certain 
punishment. On that section the Judges in England decided 
that the word " cattle " included horses. The statute is long 
since repealed, but it has been replaced from time to time by 
others in which the same language is used. It is now repre- 
sented by s. 42 of the Injuries to Property .4cf, jsvhich uses precisely 
the same words. The Legislature had before them a form of words 
upon which a judicial meaning had been put by the Bench in 
1707. They used the same language, and the necessary implica- 
tion is that they meant the same thing, and that the word 
" cattle " includes horses. The case is really not arguable. 

Cooper J. : I concur. 

Real J. : I concur. 

Solicitor for the Crown : C. Powers. 



1899. 
8th December: 

Griffith G.J. 
Cooper J. 
Real J. 



Griffith C.J. 



Cooper J, 
Beal J. 



866 QUEENSLAND JUSTICE OF THE PEACE. 

[Full Coukt.] 

R. V. WHITEHOUSE. 

[9 Q.L.J. 325 ; N.C. 134.] 

1900. Bigamy — Valid marriage — Oath before marriage — Kissing the hook 

13th February. Persons married by incorrect name. 

Griffith C.J. On the trial of a prisoner for bigamy, the learned Judge directed the jury that it 

Reed J ' ^^ immaterial whether the prisoner, in taking the necessary oath before the 

first marriage, which oath they found had in fact been taken, did or did not kiss 

the Bible. 

Held, on a Crown Case Reserved, that the jury were properly directed. 
It is not necessary, to constitute a valid marriage, that the right name of the 
parties should appear. It is sufficient if they are married under the names by 
which they are generally known. 

Crown Case Resbeved by Noel D.C.J. 

The defendant, E. H. W. Whitehouse, wa.s tried before Noel 
D.C.J, on a charge of bigamy. From the evidence it appeared 
that on the first marriage of the accused the parties were married 
according to the rites of the Methodist Church, but no evidence 
was given as to the exact formula observed. The officiating 
minister, however, deposed that all necessary formulae were fol- 
lowed. His Honour directed the jury that it was immaterial 
whether the defendant, in taking the necessary oath before 
marriage, kissed the Bible, so long as the necessary legal formulse 
were complied with. The jury found that as a fact the defendant 
did kiss the Bible. It also appeared that the second marriage was 
made between the prisoner and a woman whose name was given 
as M.A.P., but whose real name was M.A., the former name being 
that by which she was generally known. The learned judge, at 
the request of the prisoner, reserved for the consideration of the 
Full Court the following questions : — 

1. Was I right in directing the jury that the kissing of a Bible 

was immaterial ? 

2. Was I right in proceeding to sentence, although the evi- 

dence disclosed that the original name of the subject 

of the second marriage was M.A. and not M.A.P. ? 

Prisoner (in person) submitted that there was evidence that the 

Bible was not kissed at the first marriage, which was therefore 

invalid ; and that the second marriage was invahd owing to the 

wrong name being given by one of the paijties to the marriage. 

Watson, for the Crown : The defect alleged by the defendant in 
the making of the oath is contemplated and covered by s. 21 of 



CRIMINAL REPORTS, 1860-1907. 367 

The Marriage Act. " Kissing the book " is not essential to the B. i,. Whiiehouse 
taking of an oath. The only requirement is that the oath be 
taken reverentially. The declaration even if not made on oath 
is sufficient. 

The Court did not wish to hear him on the second question. 

Prisoner, in reply, contra. 

Geiffith C.J. : The first point raised in this case, as stated by Griffith C.J. 
the learned judge, is whether he was right in directing the jury 
that kissing the Bible was immaterial in the taking of the oath 
required by law to be made by the prisoner before marriage. 
Other points were sought to be raised by the prisoner in the 
course of the argument, and although we are limited to the case 
as stated by the learned judge, we have, at the prisoner's request, 
referred to His Honour's notes, and we find that no other point 
really could be raised on the facts as they appaered before the 
Court below. The question then is : Is it essential to the validity 
•of an oath that the person taking the oath should kiss the Bible ? 
If there was ever any doubt on the subject it has been settled by 
statute. Section 33 of The Oaths Act of 1867 provides that in all 
cases in which an oath may be lawfully administered to any per- 
son on any occasion whatever, such person is bound by the oath 
administered, provided the same was administered in such form 
and with such ceremonies as such person may declare to be bind- 
ing. When an oath is administered, and the person to whom it 
is administered accepts the mode of administration which is 
tendered to him and takes the oath in that form, he cannot, in 
my opinion, afterwards be allowed to say that he had it in his 
mind at the time that it was not binding upon his conscience. 
When, therefore, an oath is tendered to a person, and he takes it 
without objection, it will be held binding upon him for all the 
consequences that will depend on the validity of the oath. Here 
it appears that an oath was administered in fact. Of course, this 
is essential. The Act only applies in cases where an oath may 
be lawfully administered and has actually been administered. 
It appears on the evidence that an oath was administered to the 
prisoner in some form, and that he took it. The jury have found 
expressly that he kissed the Bible ; for the reasons I have just 
stated, whether he did or not, appears to be immaterial. The judge 
was, therefore, right in directing the jury that it was immaterial. 

The other point is that the name of the woman with whom the 
prisoner went through a bigamous marriage was not correctly 
described in the information. The rule, as laid down in Taylor 



868 



QUEENSLAND JUSTICE OF THE PEACE. 



B. i;. Whitehotjbe on Evidence, as to the name of the injured person is that "it is 
Griffi^C.J. not necessary to describe the party by what in strictness is his 
right name, but that it is sufficient to give any name which he 
has assumed or by which he is generally known," and the learned 
author adds that the omission of the second Christian name has 
been frequently held to be immaterial. There is ample evidence 
in this case that the unfortunate victim of the prisoner was 
generally known by the name by which he was married to her. 

CooPBE J. : I am of the same opinion. 



Cooper J. 



Beal J. 



Real J. : In this case the prisoner was convicted of bigamy. 
The learned judge has stated a case at the request of the prisoner, 
in which he says that he directed the jury that it was immaterial 
whether the Bible was kissed or not, so long as the necessary legal 
formulae had been compUed with, and that there was no conten- 
tion that the ordinary legal formulae had not been compUed with. 
The prisoner here raises the question — and he asks practically 
that the case may be sent back to raise the question — that no 
oath at all was taken. A declaration is produced, signed by the 
prisoner, which purports to have been made upon oath. The 
evidence of the prisoner, and apparently of his wife, was that they 
took no oath. The evidence of the clergyman is that the oath 
was taken, and that the declaration was signed. However, that 
being the point raised, the clergyman said the oath was taken in 
the ordinary form by kissing the Bible. The point raised is 
whether the learned judge was right in telhng the jury that it 
did not matter whether they kissed the Bible or not, so long as 
the necessary legal formulae had been complied with. That is 
a rather ambiguous way of putting the matter. It seems that 
the point at issue, so to speak, between the Crown and the 
prisoner was whether in point of fact he put his lips to the book. 
Now, s. 33 of The Oaths Act specially provides, as pointed out by 
the Chief Justice, that if any form is used, and the person declares 
it to be binding on him, that form is sufficient. It appears to me 
that if any form is tendered to a person, and the person adopts 
that form, he impliedly declares it to be binding upon him. He 
declares to the person administering the oath that it is sufficient, 
and in that event kissing the book is wholly unnecessary. If, 
therefore, the book was tendered to a man, and he kissed his thumb, 
he accepts that form ; and the mere fact that he did not touch the 
book does not matter. He would be bound by the oath. Apart 
from that fact, there are a great number of cases which decide, 



CRIMINAL REPORTS, 1860-1907. ^69 

and no doubt properly, that a man cannot evade his responsi- B- v- White hoube 
bility by means of that kind, though he may salve his own con- EealJ. 

science. Apart from that, s. 33 specifically declares that when 
he adopts a form it is binding. I think that if any form is used, 
and the person accepts the form when it is tendered to him by 
w&y of an oath, for the purpose of giving solemnity to his declara- 
tion, the mere acceptance of it involves a declaration that it is 
binding upon his conscience. There must be some form of oath 
tendered. The mere signing of the document would not consti- 
tute, an oath. That documents purports to be given on oath, 
and the oath is something outside the document. If the prisoner 
were prosecuted for perjury, it would be of course at once essential 
to decide whether or not he had taken an oath ; and I think in 
that case the mere fact that he held up his hand, as the old 
Covenanters did, or said " I swear," or anything of that kind, 
would bring him within the provisions of s. 33, and he would have 
taken the oath. I therefore think in this case the oath was taken. 
The evidence of the clergyman is that it was taken by kissing the 
book. That evidence might be contradicted, but the jury were 
at liberty to believe it, and the judge was right in directing the 
jury that the mere omission to kiss the book would not prevent 
the oath being taken, or the omission of any form (so long as 
some form was taken which the person accepted, knowing that 
it was administered to him as an oath) render it not binding. 
Whether he held up his hand, as the old Covenanters did, or 
adopted some other form, it does not matter. The evidence being 
sufficient, the question as to whether or not a marriage would be 
binding if no oath were administered before the ceremony was 
gone through, does not arise in this case, and it is therefore not 
necessary to give a decision upon it. It is important, however, 
to call attention to the fact that the wording of our section is by 
this case shown to be precisely similar to that which was in 
existence in New South Wales at the time of Tyson v. Logan, and 
which rendered it incumbent on the New South Wales Legislature 
to pass an Act validating all marriages. Whether or not it would 
be wise for that to be done here is for the Legislature to decide. 
It is not a matter for decision in this case, and consequently I 
prefer to offer no opinion upon it, as it would have no binding 
effect. Therefore I agree with the decision of my brother judges. 
I do not wish to add anything on the other points. 

Conviction affirmed. 
Solicitor for the Crown : C. Powers. 



370 



1898. 
7th November. 

Griffith G.J. 



QUEENSLAND JUSTICE OP THE PEACE. 

R. V. HART. 

[9 Q.L.J. N.C. 46.— Note.— But see now express provision In s. 611 of Criminal 

Code.] 

Practice — Juror — Challenge by Crown — Time for challenge. 

DuBiNG the empanelling of the jury on a criminal trial, a juror 
having come forward on his name being called, and having been 
offered the book by the Court officer, had grasped the book, but 
the officer had not released the book or begun to recite the oath, 
when the juror was ordered to stand by : Held, that by the offer- 
ing of the book by the Court officer, and its acceptance by the 
juror, the administering of the oath had been commenced, and 
that, therefore, the challenge was not in time. 



1899. 
28th April. 

Real J. 



K. V. MURRAY, Ex parte OLIVER. 

[9 Q.L.J. N.C. 82. — Note.— See Commonwealth Extradition Act (No. 12 of 1903).] 

Habeas corpus — Extradition Act, 1870 (33 and 34 Vic, c. 60), s. 
10 — Wrongful admission of evidence before magistrate. 

Where on an application to a magistrate under s. 10 of The 
Extradition Act, 1870, to commit a prisoner, evidence was wrongly 
admitted against the prisoner : Held, on the return of a writ of 
habeas corpus, that notwithstanding that there was other evidence 
rightly admitted upon which a committal might have been made, 
the committal must be set aside and the prisoner discharged. 



1900. 
18th July. 

Griffith C.J 
Cooper J. 
Real J. 



[Full Court.] 
R. V. HILL. 

[10 Q.L.J. 50 ; N.C. 13.— Note.— See definition of " clerk or servant " in s. 1 of 
Criminal Code, and see ss. 391,'^398 (VI.), and 443 of Code.] 

Larceny — Misappropriation of funds of unregistered association — 
Larceny by one of several joint owners. 

The servant of an unregistered association can be convicted of larceny of the 
funds of the association. 

B. V. Stainer (L.R. 1 C.C. 230), E. v. Tankard (1894, 1 Q.B. 548) followed. 
The fact that he is a member of the association is immaterial. 



CRIMINAL REPOETS, 1860-1907. 371 

Crown Case Reserved by Mr. Deputy-Judge Macnaughton ^' '"_^ '^'" 

on the trial of Wililam Hill for embezzlement. 

The prisoner was charged at the District Court at Charters 
Towers with the embezzlement of the sum of £100, the property 
of William Walsh and others. It appeared upon the evidence 
that Walsh was the treasurer of the Charters Towers Miners' 
Accident Association, an unregistered body whose object was to 
provide pecuniary assistance to miners and their families in the 
event of accident or death. The prisoner had acted — although 
never formally elected by ballot, as required by the rules of the 
association — as secretary to the society for eight years at a fort- 
nightly salary, and was interested as a joint owner with others 
in the funds of the association. The subject matter of the charge 
was a cheque for £100, which had been signed by the president of 
the association, by Walsh as treasurer, and by the defendant as 
secretary, and had then been misappropriated by him under 
circumstances which, in the opinion of the learned judge, amounted 
to larceny as a servant, and not embezzlement. The jury found 
the prisoner guilty of larceny as a servant, and sentence was passed ; 
but the learned judge, at the request of the soUcitor for the 
prisoner, stated a case for the decision of the Full Court, raising 
the following questions : — (1) Can an unregistered association 
prosecute a clerk for misappropriation of its funds ? (2) Was 
there any evidence that the prisoner was a clerk to the Charters 
Towers Miners' Accident Association ? 

Dickson, for the Crown, cited R. v. Stainer (L.R. 1 C.C. 230), 
E. V. Winfer (Diprose Friendly Societies' Cases p. 527), R. v. Taffs 
<4 Cox C.C. 169), R. V. Diprose (11 Cox 185), R. v. Houston (6 
Q.L.J. 145). 

Griffith, C.J. referred to R. v. Tankard (1894, 1 Q.B. 548). 

The prisoner (in person) offered no argument. 

Griffith C.J. : The first point intended to be raised appears Griffith C.J. 
to be whether a servant of an unregistered association or partner- 
ship can be guilty of stealing its funds. The point is disposed of 
by the cases cited — Regina v. Stainer and The Queen v. Tankard — 
in which it was held that the servant of such an association can 
be prosecuted even although the association is not registered. 
The other point intended to be raised seems to be whether the 
prisoner could be said to be a servant of " Walsh and others," he 
himself being one of the others. It appears that the association 
consisted of a number of persons, and was managed by a com- 



872 



QUEENSLAND JUSTICE OF THE PEACE. 



R. c. Hill. 
Griffith C.J. 



mittee. The prisoner, who was the secretary, received a salary 
of £3 10s. per fortnight, and was elected annually for several 
years in succession. Therefore he was, in fact, a servant of the 
association, if he could be in law. The Larceny Act of 1872, which 
followed the English Act, was passed for the purpose of doing 
away with objections that used to be taken when persons who 
stole property were joint owners of it, on the grounds that a man 
could not steal from himself and could not be a servant to himself. 
The Act provides that persons who steal or embezzle property of 
which they are joint beneficial owners shall be liable to be dealt 
with as if they were not beneficial members. It is therefore 
immaterial, both in the case of larceny and of embezzlement, 
that the offender is a joint owner. In the case of embezzlement 
he is, ex vi termini, one of the joint employers. The Act, how- 
ever, expressly provides that he may be convicted of embezzle- 
ment, so that that fact is in that case immaterial. It is, in our 
opinion, equally immaterial in the case of larceny. Whether in 
such a case he should be convicted of larceny as a servant or simple 
larceny only, it is not necessary to decide, as the prisoner was 
properly convicted of larceny, and has received a sentence that 
might be passed upon a conviction for simple larceny. 

The conviction will be affirmed. 

Crown Solicitor : C. Powers. 



J900. 

4th December. 

Griffith C.J. 
Cooper J. 
Real J. 



[Full Court.] 
R. V. KURUWARU. 

[10 Q.L.J. 139 ; N.C. 36.— Note.— See R. v. Body Hogan (3 Q.L.J. 143), ant& 
p. 207 ; R. V. Freeman 6 Q.L.J. 281) ante p. 300 ; R. v. Corbett (1903 S.B.Q. 
246), post ; R. v. Warton (1905 S.R.Q. 167) post.] 

Evidence — Dying declaration — Person of Mahommedan religion. 

The doctrine of law which allows a declaration made by a person in a fixed,, 
settled, hopeless expectation of immediate death to be admitted in evidence, 
applies to a person of the Mahommedan religion. 

On the trial of a person for the murder of B., who died from the effects of a 
gunshot wound, the doctor who attended B. immediately prior to his death,, 
deposed that prior to the making by B. of a declaration which was tendered in 
evidence, he told B. that he was likely to die and was in a very weak state. The 
declaration began as follows : " I, B., believing I am about to die, state." The 
declaration was admitted in evidence. 

Hdd, on a Crown Case Reserved, that the declaration was rightly admitted. 



CRIMINAL REPORTS, 1860-1907. 373 

Crown Case Reserved by Macnaughton, Special Commis- ^' "• Kukdwaru. 
sioner, on the trial of Peter Kuruwaru and Sumba Amadoris on 
a charge of murder. 

The accused were charged before the Circuit Court at Cooktown 
on a charge of having murdered one Bacca, a Mahommedan 
native of Madras. The evidence showed that the deceased died 
from the effects of a gunshot wound, and the Crown Prosecutor 
tendered a dying deposition made by him, which had been taken 
down by the doctor who attended him at his death, and who was 
also a Justice of the Peace. His evidence as to the making of the 
declaration was as follows : — 

" He (Bacca) made a statement while in hospital. He was 
very weak. He understood he was in a bad state. Bacca was a 
Mahommedan. I told Bacca he was likely to die, and was in a 
very weak condition before he signed the written statement. I 
wrote it down and read it to him. He seemed to understand it. 
That is his mark." 

The statement was in these words : — 

" Torres Straits Hospital, 

" Thursday Island. 
" I, Bacca, believing I am about to die, state : I heard a row 
in the road. I was getting ki ki for Soupaya and another man. 
This man (pointing to Amadoris) and Peter, a Cingalese, knocked 
down Soupaya and his wife. I come help. Some one shoot me. 
I don't know who fired revolver. j,ig 

" Bacca x 
" Taken at -2 a.m., July 18, 1900. ""-^^ 

" (Sgd.) Herbert Chesson, J.P." 

No objection was made by the solicitor for the prisoners to the 
admissibility of the evid,ence, and the statement in the declaration 
that Bacca did not know which of them fired the shot was relied 
upon by the solicitor in his address to the jury. After the retire- 
ment of the jury the solicitor for the defence asked that the ques- 
tion of the admissibility of the dying declaration might be reserved 
for the consideration of the Full Court, but did not ask that it 
should be withdrawn from the consideration of the jury. The 
jury convicted the accused of manslaughter, and a sentence of 
seven years' penal servitude was passed on each, but the execu- 
tion of the sentence was respited until after the consideration of 
the Full Court upon the point raised, and upon which the judge 
stated a special case which now came on for hearing before the 
Full Court. 



374 QUEENSLAND JUSTICE OF THE PEACE. 

K. '.'. KcBowAEtj. Henchman, for the prisoners : The dying declaration of the 
deceased was improperly admitted. There were two grounds of 
objection to the admission of this evidence : — (1), That there was 
no evidence upon which the learned judge could have come to 
the conclusion that the deceased, at the time of making the 
declaration, was labouring under " a settled, hopeless, expecta- 
tion of pending death " ; (2), there was no evidence before the 
learned judge to show that the deceased was a person with such 
a sense of religious responsibility as would impel him to speak the 
truth at the moment of death, and so render a declaration made 
by him in articulo mortis admissible in evidence. 

On the first point he cited R. v. Jenkins (L.R. 1 C.C.R. 187), 
R. V. Dalmas (1 Cox C.C. 95), R. v. Nicolas (6 Cox C.C. 120), 
R. V. Megson (9 C. & P. 418), R. v. Mooney (5 Cox C.C. 318), R. v. 
Osman (15 Cox C.C. 1), R. v. Gloster (16 Cox C.C. 471), R. v. 
Mitchell (17 Cox C.C. 503), and R. v. Freeman (6 Q.L.J. 281). 

On the second point : The rule as to the admission of dying 
declarations was a strong exception to the criminal law ; that the 
rule was introduced at a time when the common law was still 
confined in its operation to persons resident in Great Britain, who 
were presumedly Christians ; the Courts took notice of the 
Christian religion and its doctrines, but with regard to Mahom- 
medanism, the mere proof that a man professed that reUgion 
would not entitle the judge to draw the inference, without evi- 
dence of the fact, that that religion inculcated in its adherents 
the sinfulness of falsehood and the likelihood of punishment 
hereafter for false declarations made in life. On this point he 
cited R. V. Pike (3 C. & P. 598), R. v. Perkins (9 C. & P. 395), and 
Best on Evidence (7th Ed., p. 454.) 

Garrick, to support the conviction : The question was one of 
fact for the judge at the trial, and that he had ample evidence 
before him to enable him to come to the conclusion at which he 
has arrived. He cited Archbold's Criminal Practice and Evidence, 
p. 294 ; Phipson on Evidence, p. 300 ; and R. v. Reaney (Dears. 
& B. 151). 

Griffith C.J. Gbiffith C.J. : The only question reserved in this case is 

whether the dying declaration made by the man who was killed 
was admissible in evidence. The point taken was that there was 
not sufficient evidence to prove that the deceased, when he made 
the declaration, made it believing that he was at the point of 
death. Whether there was such evidence or not was a question 
of fact to be determined by the learned judge at the trial, subject, 



CRIMINAL REPORTS, 1860-1907. 375 

of course, to revision by this Court. Was there evidence upon ^' ^' ^p^^ '^^"^- 
which the learned judge could properly find that the man believed Griffith C.J. 
he was at the point of death ? The evidence was this : The man 
was shot in the stomach at such close quarters that the flesh was 
singed, and he died a very short time afterwards. Before he died 

he made a declaration, which read, " I, believing I 

am about to die," etc. The Court are of opinion that there was 
sufi&cient evidence to enable the learned judge to come to the 
conclusion that the man believed he was about to die. 

Another point which is not reserved, but which it was sought 
to raise, is, that the declaration was inadmissible on the ground 
that the deceased was a Mahommedan. I know of no rule of law 
which would exclude the dying declaration of a Mahommedan. 
Mahommedanism, as we know, is one of the great religions of the 
world. Its adherents number some hundreds of millions of people, 
of whom more than 100,000,000 are British subjects. We see 
them giving evidence in our Courts, and taking the oath on the 
Koran. It would be a singular thing, indeed, for a British Court 
to decide that the djdng declaration of a Mahommedan is not 
admissible on the ground that he had no religious beUef. An 
unusual circumstance in connection with the case, is that the 
prisoners' counsel was anxious for the admission of the declaration, 
and reUed on it as the main point in the prisoners' defence. 
Afterwards, however, when the case had gone to the jury, he 
asked the learned judge to reserve the first point. If it had been 
necessary to decide the effect of this action on the part of the 
prisoners' counsel, a rather interesting question might have 
arisen. However, as ti.e case stands, the Court are of opinion 
that the evidence was properly received, and the conviction must 
be afSrmed. 

Solicitors for prisoners : Bear <Sc Gorton, Thursday Island. 



376 



QUEENSLAND JUSTICE OF THE PEACE. 



1900. 
5th December. 

Griffith G.J. 
Cooper J. 
Real J. 



Griffith C.J. 



[Full Court.] 
MILLIS V. KIEFER, Ex parte KIEFER. 

[10 Q.L.J. 142 ; N.C. 38.— Note.— Sec. 6 of 17 Vic, No. 3, is repealed, see now s. 
445 of Criminal Code. See also Clifford v. White (4 Q.J.P.R. 132 ; 1910 
S.R.Q. 364).] 

The Cattle Stealing Prevention Act (17 Vic, No. 3), s. 6 — Illegally 
using cattle — Taking out of possession not a using. 

The driving of cattle from the possesaion of their owner to the land of the driver 
for the purpose of there killing the cattle, is not a working or using of the cattle 
within the meaning of s. 6 of The Cattle Stealing Prevention Act. 

Motion to make absolute an order nisi calling upon the Justices 
of Nanango and James Millis, the complainant, to show cause 
why a conviction of the appellant on a charge of illegally using 
cattle should not be set aside. 

In this case the evidence before the convicting justices showed 
that the defendant had taken two cows from the land of the 
respondent and had driven them to his own land for the pur; 
pose of slaughtering them there, but that they were there, at his 
request, taken possession of by the police. The appellant, who 
claimed that the cattle were his property, appealed from the 
conviction upon the ground, inter alia, that there was no evidence 
of any user by him of the cattle. 

Lukin (with him Hart) for the appellant : There was no evidence 
of user. There is no case where mere taking has been held an 
offence under the section. The section was considered by our 
Full Court in Emmerson v. Clarke (3 S.C.R. (Q.) 76), where it was 
held that to constitute a user there must be a taking for the profit, 
convenience, or pleasure, of the person taking. He also cited R. 
V. Frew (7 S.C.R. N.S.W. (C.L.) Ill), In re Haughton (1 Q.L.R. 
(Pt. II) 53), R. v. Collett (14 S.C.R. N.S.W. 291), Cunningham v. 
McFarlane (1 Q.L.J. 49), Ex parte M'Intyre (Wilkinson p. 97), 
and Ex parte M'Donald (1 N.S.W.L.R. 252). 

Macgregor (with him O'SuMivan) for the respondent, cited Ex 
parte Fox (2 S.C.R. N.S.W. (N.S.) 47) and R. v. M'Kenzie (5 
N.S.W.L.R. 219). 

O'Sullivan followed. 

Lukin, as to costs, cited Holland v. Hartford (6 Q.L.J. 86). 

Griffith C.J. : Although s. 6 of The Cattle Stealing Prevention 
Act makes it a misdemeanour either to take, use, or work the cattle 



CEIMINAL REPORTS, 1860-1907. 



377 



of another without his consent, the section imposes the penalty- 
only for every head of cattle " used," and this Court has more than 
once decided that justices have no jurisdiction except when 
" using," as well as " taking " is proved. In this case, therefore, 
the justices had jurisdiction to convict with respect only to cattle 
proved to have been " used " by the defendant. The only evi- 
dence is, as stated by Mr. Macgregor, that the defendant drove 
the two cows in question to his own land for the purpose of killing 
them. That is evidence of taking, but it is impossible to hold 
that such a dealing with cattle is using, unless mere taking is using. 
For that reason the justices should not have convicted, and the 
.appeal must be allowed. The ordef will therefore be made 
absolute, but under the circumstances with one half costs only. 

Solicitor for appellant : J. F. Bergin. 

Solicitors for the respondent : Atthow cfc McGregor. 



MiLLISU. KlEFBB, 

Ex parte Kiefeb. 
Griffith C.J. 



[Full Court.] 

R. V. BENNETT. 

[10 Q.L.J. 147 ; N.C. 42.] 

Practice — Appeal — Misdirection — Isolated portions of summing up. 

Isolated passages of a summing up will not be considered separately as grounds 
for setting aside a verdict, but the whole summing up must be taken into con- 
sideration. , 

On the trial of a prisoner for rape, the Judge in his summing up, after referring 
to the evidence of a medical witness, remarked that the witness was apparently 
of opinion that there had not been consent. He then added, " However, that 
is not binding on you, but the question of consent or non-consent is entirely 
for you upon the evidence as a whole." 

Hdd {per Griffith C.J. and Cooper J., Real J. dissentienie), that there had been 
no misdirection. 

Crown Case Reserved by Noel A.J. on the trial of Ernest 
Bennett on a charge of rape. 

The prisoner was tried before Noel A.J. at the Rockhampton 
Criminal Sittings. The special case stated by the learned judge 
was as follows : — 

The abovenamed prisoner was tried before me at the recent 
sittings of the Supreme Court at Rockhampton on a charge of rape. 

Mr. O'Rourke appeared for the prisoner. 



1900. 
1th December. 

Grifflth G.J. 
Cooper J. 
Beat J. 



378 QUEENSLAND JUSTICE OP THE PEACE. 

E. V. Bennett. Francis Henry Vivian Voss, the Government Medical Ofl&cer 
for Rockhampton, was called as a witness, and under cross- 
examination, in allusion to his testimony in chief as to the appear- 
ance of the victim's genital organs, said, " Her condition did not 
necessarily preclude consent." 

In answer to me Dr. Voss said, " Except for the bruise on the 
thigh, the appearance of the vagina did not preclude consent, but 
I would call attention to the drawers and the torn clothes gener- 
ally." 

Mr. O'Rourke did not object to this answer of Dr. Voss being' 
recorded by me. 

Sometime after the jury' had retired, Mr. O'Rourke stated that 
he had to take exception to my summing up, and wished me to- 
take a note. 

After some degree of indefiniteness, the note I took was as 
foUows : — Mr. O'Rourke takes the point that I had no right to- 
say, but acted improperly in saying, to the jury, " that as Dr. 
Voss in his evidence, while admitting that the appearance of the 
vagina was compatible with consent, draws attention to the 
condition of the clothes and the bruise on the thigh, he probably 
came to the conclusion that there was no consent." 

Mr. O'Rourke abandoned a further point that Dr. Voss should 
not have been allowed to call attention as a fact to the condition 
of the clothes, as it was not expert evidence. 

After having made the above note of the point taken, I asked 
Mr. O'Rourke what he wished me to do, as I must decline to recall 
the jury to tell them I acted improperly. 

Mr. O'Rourke did not press for a recall of the jury, but said he 
was content with a note of the point having been made. 

Subsequently, as Mr. O'Rourke had no recollection of my 
having made use of the expression, " Dr. Voss probably came to 
the conclusion," I, in order to clear up doubts, recalled the jury 
ex mero motu, and re-directed them. 

I said, " As some doubt has arisen whether I said in my charge 
to you that Dr. Voss had probably come to the conclusion that 
there was no consent, I now say that from the fact Dr. Voss called 
attention to the bruise on the thigh and the state of the clothing, 
that probably he came to the conclusion that there had been no 
consent. However, whatever conclusion Dr. Voss came to on 
that point is not binding on you, but the question of consent or 
non-consent is entirely for you upon the evidence as a whole." 

The jury found the prisoner guilty, and I directed sentence of 
death to be recorded. 



CEIMINAL REPORTS, 1860-1907. 



37& 



The questions for the opinion of the Judges of the Supreme 
Court would appear to be : — 

1. Did I act improperly in my summing up to the jury ? 

2. If so, what order do the judges see fit to make ? 

O'Eourke for the prisoner. 

Griffith C.J. : This case arises in a singular way. The 
prisoner was accused of having commited rape. A medical 
witness was called, who gave some evidence as to the condition 
in which he found the girl, and as to the state of her clothes, 
from which it might be inferred that, in his opinion, the act had 
not taken place with her consent. In the course of the summing 
up to the jury the learned judge, after referring to the evidence, 
remarked that it was apparently the opinion of the medical witness 
that there was no consent, and added, " however that is not 
binding on you ; the question of consent or non-consent is wholly 
for you." It has often been laid down that isolated passages of a 
judge's summing up cannot be picked out, but that the summing 
up must be taken as a whole, and that unless so taken it is wrong, 
the Court cannot set aside the verdict. In the present case I 
cannot see that the learned judge was wrong in calling attention 
to the evidence of the witness and in saying, " apparently this 
witness thinks so and so ; but you are not bound by that at all." 
The opinion of the witness was naturally to be inferred from his 
answers, although he did not expressly give an opinion on the 
point. It was contended that his opinion, if given, would have 
been inadmissible, but I am not at all sure that it would have 
been inadmissible. But, whether it would or not, I do not see 
that there could be any objection to the judge calling attention 
to what was already before the jury without objection, and point- 
ing out that whether the doctor thought there was consent or not, 
his opinion was not binding on the jury, but the question was one 
entirely for them to decide. I do not see that any objection can 
be taken to the summing up regarded as a whole. 

CooPEE. J. : I am of the same opinion. From the evidence of 
Dr. Voss I should say myself that the inference to be drawn was 
that the doctor was of opinion that the girl did not consent. 
Looking at that, I think the judge could refer to the doubt existing 
on the point, and allude to the doctor's evidence. There might be 
a difference of meaning as to the effect regarding the way in 
which the Judge used the word binding. If he laid special 
emphasis on the word, saying, " Whatever the doctor's con- 



B. V. Bennett. 



Griffith C.J. 



Cooper J. 



880 



QUEENSLAND JUSTICE OP THE PEACE. 



E. u. Bennett. 
Cooper J. 

Eeal J. 



elusion, it is not absolutely binding on you," I think the summing 
up might be open to objection. But when stated in the ordin- 
ary way, I am of opinion that his remarks were free from objection. 

Real J. : I agree with my brother Judges as to the rule laid 
down, but I do not come to the same conclusion. I look at the 
evidence given by Dr. Voss in the case. He was asked if the 
condition of the vagina was such as to preclude consent, and the 
ansAver given is " No." The learned Judge, considering that 
ambiguous, asks further questions, when he answers, " Except 
for the appearance of the thigh, the appearance of the vagina 
was not such as would preclude consent." He then draws 
attention to the clothes. That was not medical evidence, although 
the doctor in giving it had a perfect right to do so. The 
assumption would be that the doctor assumed these clothes were 
worn at the time, and so gave his opinion ; in fact, he connected 
the clothes with the state of the girl, and gave the opinion that 
there was no consent. A question might have been raised as to 
whether the evidence under the circumstances was admissible. 
When the learned Judge directed the jury, Mr. O'Rourke raised 
the point, and pointed out that the appearance of the vagina 
was not compatible with the condition of no consent. I do not 
see anything wrong with the summing up. It might be necessary 
to draw attention to the fact that the doctor referred to the clothes, 
and that his opinion was discounted by the statement that 
without the clothes there was not sufficient evidence to prove 
that there had been no consent. Having made the direction, 
however, the learned Judge refused to alter it or admit that he 
was wrong. Mr. O'Rourke did not press for the recall of the jury, 
but was content that a note should be made of his objection. 
Subsequently, as Mr. O'Rourke had no recollection of the Judge 
having said, " Dr. Voss probably came to the conclusion," he 
recalled the jury. This was after his summing up had been 
challenged by counsel, who was taking matters calmly, and after 
the Judge had time to think over what he had said. What was 
the position, then ? The Judge had a perfect right to point 
out that the doctor was a scientific witness, and that the doctor 
considered the bruises on the thigh were indications of no consent, 
and that he (the doctor) regarded the clothes as emphasising his 
opinion. Now, what did the Judge do ? He stated, " Some 
doubt has arisen as to whether I said in my summing up that 
Dr. Voss had probably come to the conclusion that there was 
no consent. I now say from the fact that Dr. Voss called 



CRIMINAL REPOETS, 1860-1907. 



381 



attention to the bruises on the thigh he probably came to the 
conclusion that there was no consent. However, whatever 
conclusion he came to, that is not binding on you, and you have 
to consider the question of consent as a whole." Instead of that 
it should have been pointed out that Dr. ^'^oss did not use the 
scientific part at all, and that he relied on the clothes in forming 
his opinion. Leaving the matter ^ith the words, " the con- 
clusion is not binding on you," I think was strong evidence to the 
jury, and such as an ordinary jury would be very much influenced 
by. I think the circumstances should have made the learned 
Judge particularly careful that nothing in the shape of mis- 
direction was driven home. Therefore, in this case, I am of opinion 
that there were circumstances of misdirection, but solely after the 
jury were recalled. 

The conviction was affirmed. 

Solicitor for prisoner : Grant, Rockhampton. 



K. V. Bennett. 
Eeal J. 



[Full Court.] 

R. V. BECKMANN. 

[11 Q.L.J. 1 ; N.C. 1.] 

Evidence — Criminal proceedings — Applicability of The Evidence 
and Discovery Act (31 Vic, No. 13), to criminal proceedings. 

Section 24 of The Evidence and Discovery Act of 1867 applies to criminal proceed- 
ings as well as to proceedings on the civil side of the Courts. 

Ceown Case Reserved by Chubb J. on the trial of Charles 
Beckmann for murder. 

The special case stated by the learned Judge was as follows : — 

" The prisoner was tried at the Criminal Sittings of the Court at 
TownsvUle on the 5th, 6th, and 7th days of March instant, before 
me and a common jury upon an information charging him with the 
wilful murder of one Alfred Anderson. 

" In the course of the trial the Crown Prosecutor desired to 
prove as part of the case for the Crown that two letters were in 
the handwriting of the prisoner. To do this he called as a witness 
a police constable, who produced a letter which he testified he 
had seen the prisoner, while in custody, write, upon paper pro- 
vided by the constable for the purpose, and which the prisoner 



1901. 

15th March. 

Griffith G.J. 
Cooper J, 
Paul A.J. 



382 QUEENSLAND JUSTICE OF THE PEACE. 

R. V. Beckmann. signed with his name and handed to him for the purpose of being 
delivered to the poUce magistrate at Bowen. This letter was 
proved to my satisfaction to be genuine, and, on being tendered, 
was admitted by me in evidence, no objection being taken to it by 
counsel for the prisoner. The Crown Prosecutor then proposed 
to prove the two letters previously mentioned and alleged to be in 
the handwriting of the prisoner by comparison of the hand\iTiting 
of these letters with the proved handwriting of the prisoner 
in the letter admitted by me. A Mr. Henry De Burgh Anderson, 
bank manager, Bowen, was called as a witness for this purpose. 
He was examined as to his skill and experience in the comparison 
of handwriting. I was satisfied that he was sufficiently skilled 
to give evidence on the question coming within the authority 
of The Queen v. Silverlock (1894 2 Q.B. 766), and no objection 
was taken to his competency by counsel for the prisoner. The 
witness then testified that, in his opinion, from a careful com- 
parison of those two letters with the admitted letter proved to 
be in the prisoner's handwriting, those two letters were also in 
the prisoner's handwriting. 

" The Crown Prosecutor then tendered the two letters in 
evidence. 

" Counsel for the prisoner objected to their admission on the 
ground that comparison of a disputed handwriting with writing 
proved to be genuine to the satisfaction of the Judge is not 
permissible in criminal proceedings, and submitted that the 
24th section of The Evidence and Discovery Act of 1867, under 
which the evidence was tendered, applied only to civil proceedings. 

" I overruled the objection, and admitted the evidence, which 
was, in my opinion, very material and of great weight in support 
of the case for the Crown, and upon the application of counsel 
for the prisoner reserved the question of the admissibiUty of this 
evidence for the consideration of the Supreme Court. 

" The jury convicted the prisoner, and I pronounced judgment 
upon the conviction, and passed sentence of death upon the 
prisoner in the prescribed form. The prisoner is now in prison 
awaiting execution. 

" The question of law for the consideration of the Court is 
whether the evidence objected to was rightly admitted." 

Fewings, for prisoner : Section 24 of The Evidence and Discovery 
Act of 1867 is merely a re-enactment of s. 15 of The Common Law 
Procedure Act of 1867. That Act applied to civil proceedings 
only, and, in the absence of words extending its application. 



CRIMINAL REPOETS, 1860-1907. 



383 



-the re-enactment of the section in the Act of 1867 cannot be held 
to have extended the rule to criminal proceedings. 

Gkiffith C.J. : I have found some difficulty in following 
the argument in this case. Before 1867 it had been enacted by 
The Common Law Procedure Act of 1857, s. 15, that comparison 
■of any disputed writing with any writing proved to the satis- 
faction of the Judge to be genuine should be permitted to be made 
by witnesses. That section was contained in an Act relating only 
to civil proceedings on the common law side of the Court, and 
apparently it did not apply to criminal proceedings. In the year 
1865 the Imperial Legislature passed a section (28 Vic, c. 18, 
s. 8), in precisely the same terms applying to criminal proceedings, 
but that provision does not appear to have been adopted in 
Queensland before 1867. In 1867 a great number of Acts were 
consolidated, amongst those Acts being all the Acts relating to 
evidence ; and The Evidence and Discovery Act, which is entitled 
" An Act to consoUdate and amend the law of evidence and 
discovery at common law," re-enacts this section without 
any words of limitation to show that it is limited to civil cases. 
It is simply enacted as part of the law of evidence. It is now 
suggested that because the section was previously found in an 
Act relating only to proceedings on the civil side of courts of 
common law and did not apply to criminal proceedings, therefore, 
although it is found in an entirely different collocation, in an 
Act dealing with the law of evidence generally in all proceedings 
of the Courts, it must still be read as applying to civil cases 
only. I find difficulty in following the argument. It seems 
to me that if it is necessary to draw any inference of intention 
at all — if it is necessary to go beyond the words of the section, 
which are plain enough — the inference is that the Legislature 
intended to alter the law — ^that when they repealed an Act which 
contained a provision which had a limited operation and re- 
enacted the provision in a different collocation, where, prima 
facie, it is used in a general sense, they intended that it should have 
general application. But I see no necessity to go further than 
the section itself. It is plain in its terms, and contains no words 
of limitation, and I cannot see any reason why the Court should 
read any into it. It is part of a law which applies to all the 
Courts. In Victoria a similar point arose, and there it was taken 
for gi'anted. I thought it had been taken for granted here ever 
since 1867. 

CooPEB and Paul JJ. concurred. 



B. V. BSCKMANN. 



Griffith C J. 



Cooper J. 
Paul A.J. 



1901. 

5th JuT.e. 



884 QUEENSLAND JUSTICE OF THE PEACE. 

R. V. FRIDAY, Ex parte FRIDAY. 

[11 q.L.J. 26 ; N.C. 7.] 

Fugitive O^enders Act, 1881 (44 and 45 Vic., c. 69), ss. 14, 19 — 

Arrest of offender on charge of vagrancy — No evidence of offence 

Chubb 3. charged — Admission of evidence before justice as to committal of 

offence — Application not made in good faith or in the interests 

of justice — Trivial case. 

Prisoner, a, married woman, was arrested in Townsville on a warrant issued 
by a Magistrate in Victoria on a charge of vagrancy. On an application to the 
police magistrate under s. 14 of the Fugitive Offenders Act, 1881, to return 
the prisoner to Victoria, the mother of the prisoner gave evidence that the prisoner,^ 
being then of the age of 15 years and unmarried, left the home of her parents 
in Melbourne without their consent and went to Sydney, where she married a 
man with whom she was proceeding, at the time of her arrest, to Japan, and 
that she had, on the advice of the Victorian Police Department, charged the 
prisoner with vagrancy, and obtained the issue of the Victorian warrant. No 
evidence was given that the prisoner was without means of support. In reply, 
the evidence of the prisoner was tendered, but the Magistrate refused to hear 
her evidence, and ordered her return to Victoria. 

On the return of a rule nisi, under s. 19 of the Act, appealing from that order, 
Chubb J. held (1) — following In re Carlo Pedro (5 Q.L.J. 22) — that the magis- 
trate was wrong in refusing to hear the accused ; and (2) that the application 
was not made in the interests of justice nor in good faith, within the meaning 
of s. 19 of the Act, and that the order must be set aside and the prisoner discharged. 

Motion to make absolute a rule nisi granted by Chubb J. by- 
way of appeal from an order made by the police magistrate 
at Townsville, under s. 14 of the Fugitive Offenders Act, 1881, 
ordering the prisoner to be returned to the State of Victoria. 

The prisoner had been apprehended at Townsville upon a 
warrant issued by a Victorian magistrate upon a complaint made 
by the mother of the prisoner. Upon being brought before the 
police magistrate at Townsville, the mother gave evidence, and 
stated that the prisoner, her daughter, was 15 years of age ; 
that she resided with her at Richmond, near Melbourne ; that 
on the 30th April last the prisoner left her home without her 
knowledge, then being unmarried, and went to Sydney, New 
^outh Wales, where, on the first of May (as she had been informed), 
she had married Sydney Friday, and on the next day left with 
her husband for Japan ; that on the 4th of May she was advised 
by the Melbourne police to charge her daughter with vagrancy, 
and did so ; that her only object in making the complaint was 
to get her daughter back, and that after the warrant was issued 



CRIMINAL REPORTS, 1860-1907. 



885 



she consulted the Attorney-General of Victoria, and lett matters ^- "■ Pk?i>a^. 

, , , , , TT- ■ T -S^ parte Pbidat. 
in the hands of the Victorian pohce. The police magistrate 

refused to hear the evidence of the prisoner which was tendered, 
refused to make an order to discharge the prisoner from custody, 
and ordered her to be returned to Victoria under the warrant. 
A rule nisi to quash this order was granted by Chubb J., under 
s. 19 of the Fugitive Offenders Act, on the following grounds : — 
(1) That the prisoner was improperly arrested without a pro- 
visional or endorsed warrant. (2) That the application for the 
return of the prisoner was not made in good faith, in the interests 
of justice or otherwise. (3) That the charge was trivial. (4) That 
there was no evidence of the alleged offence having been com- 
mitted. (5) That the police magistrate refused to receive 
evidence of the prisoner tending to negative the offence charged. 

Macnaughton, for the prisoner, abandoned the first ground, 
the warrant having been endorsed by the Police Magistrate after 
the arrest had been made. 

Beaumont (Crown Solicitor) showed cause. The police magis- 
trate had comphed with the provisions of s. 14 in being satisfied 
that the warrant was duly issued, and of the identity of the 
prisoner, and of the offence charged being within the Act. The 
Court will not go behind the order. 

Macnaughton, on the last ground, cited R. v. Smith (10 W.N. 
(N.S.W.) 171). 

Chube J. : In mj' opinion there was absolutely not a shred of Chubb J. 
evidence of vagrancy to justify the issue of the warrant in Victoria. 
The desire of the mother to regain her daughter was natural, 
and it has my sincere sympathy, but Acts of Parliam